What is jawboning? And does it violate the First Amendment?

With a few narrowly defined exceptions, the First Amendment prohibits government officials from censoring the speech of private actors. But of course, that doesn’t stop them from trying — and there are many sneaky, indirect ways for them to do it.

One of the most pernicious methods is for the government to attack or pressure not the speaker of disfavored ideas, but those who give the speaker an audience and a platform. If the government limits or even eliminates your ability to publicly voice a message, then you’re effectively being silenced even if no one is putting their hands over your mouth.

This form of indirect censorship is called jawboning, and it’s a serious threat to free speech — particularly when it’s directed at expression on social media, where much of our discourse now occurs.

What is jawboning?

As Will Duffield wrote in a paper for the Cato Institute, “jawboning is the use of official speech to inappropriately compel private action.” 

Think of a grocery store owner who is visited by two large, intimidating men wearing suits. 

“Nice store you’ve got here,” the men tell the owner. “It’d be a shame if something happened to it. For a small fee, we can make sure your store stays safe.” 

We’ve all seen enough television to know what’s going on here, and we know that the grocery store owner doesn’t have much of a choice: They either pay for “protection” or expect their store to mysteriously burn to the ground within days.

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Today, jawboning usually refers to the government using its power — or the threat of it — to bully individuals, institutions, or organizations into doing its censorship bidding when it’s legally prohibited from directly compelling them to do so.

Imagine the president of the United States demanding that social media companies — private entities with their own First Amendment protections — begin monitoring their platforms for “misinformation” and “disinformation,” and removing the accounts of those responsible for disseminating it. And imagine this president’s administration intimating in private and flat-out announcing in public that, given the pervasive and harmful nature of this mis- and disinformation, they are considering making changes to Section 230 — a law that protects publishers from liability for what users say on their platforms. 

The threat is palpable, and the social media companies are all but compelled to oblige.

Of course, you don’t have to imagine such a thing, because that’s exactly what happened between the Biden administration and Facebook in 2021. And before that, in 2020, then-President Trump had threatened “big action” against then-Twitter and other social media platforms because they appended fact checks to some of his posts. Among the actions Trump proposed was cutting back on Section 230 protections.

Does jawboning violate the First Amendment?

FIRE has filed multiple amicus briefs challenging government jawboning, and some of these cases have even made their way to the Supreme Court, which may soon clarify when jawboning crosses the line from permissible persuasion to unconstitutional coercion. 

To distinguish the two, lower courts have considered factors like the “government speaker’s word choice and tone; whether the government official’s speech was perceived as a threat by the private party; whether the government speaker had regulatory authority when speaking; and whether the government speaker threatens adverse consequences should the private actor not do as requested.”

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However, as anybody who has seen a mob movie can tell you, it can be hard to prove you’re being threatened even though you know you are. And of course Americans should still be concerned about jawboning even when it barely stays within constitutional boundaries.

This is dangerous stuff, especially because a lot of it happens behind closed doors. The public may never know that certain social media accounts were terminated and certain content was removed at the behest of the government — except in the rare cases where those communications are exposed, like they were with the Twitter Files.

But the stakes are too high to rely on private communications going public. The U.S. government has immense regulatory power, and even the threat of it can force companies, platforms, and individuals to bend to their will in ways that directly compromise their — and our — freedom of speech.

As Duffield said during his discussion with FIRE’s Nico Perrino on the ‘So to Speak’ podcast:

Jawboning isn’t limited to legislators or threatened legislation. Legislative threats are often the most visible, but the government presiding over antitrust cases at the state and federal level, doling out fiber optic subsidies, picking partners for launches of all kinds of government stuff into space. Then, there’s always some lever that the government can pull, or individual government actors can often pull or influence.

How can we prevent jawboning?

The fight over the government’s role in communicating with online platforms will likely rage on for a long time, and it’s crucial that we make the right moves to preserve free speech and avoid government overreach.

To start, Congress should mandate that government agencies disclose their communications with social media platforms when those communications seek to pressure a platform to restrict user speech. Exposing the government’s backdoor censorship efforts to public scrutiny will make them less likely to recur and make it easier to determine when the government has violated the First Amendment.

Most importantly, the power to prevent this problem from getting worse lies with the people. 

Jawboning is an abuse of authority. If government officials use this tactic to silence disfavored speech, dissent, or criticism, it’s up to us to hold those officials accountable. But accountability is only possible with awareness, which is why transparency is so important.

It will also be necessary to rise above partisanship to truly safeguard our expressive rights online. Silencing what you consider misinformation or disinformation may seem like the right move, and it may garner your political or ideological side some short-term benefits — but in the long run, whatever tools you use to censor the opposition will be used against you the moment you aren’t in charge. And nobody is ever in charge forever. If we truly want to safeguard our own ability to speak up, speak out, and dissent, we’ll have to protect the right of others to do the same.

Free speech, and the wider discourse, depends on it.