For years now, scholars have expressed alarm at the tendency of government officials to use informal means, rather than democratically enacted laws, to pressure the social media companies to take down what they consider to be harmful or offensive speech. The term commonly used to refer to this kind of informal (but often quite effective) practice of government speech suppression is “jawboning.” While by no means unique to the digital public sphere, jawboning has come to be a particularly common tactic of government regulation of the social media platforms, in part because the government has few other means of regulating what the social media companies do. Scholars have worried, for good reason, that the practice of jawboning allows government officials to evade the stringent constraints on their power to regulate speech imposed by the First Amendment. But relatively little attention has been paid to the constitutional question of whether, or rather when, government jawboning itself violates the First Amendment.
Two recent events have pushed this question to the front page. The first of these events was President Trump’s decision in early July to file class-action lawsuits against Facebook, Twitter and YouTube. These lawsuits accuse the companies of violating Trump and the other class members’ First Amendment rights when they took down, deprioritized, or shadow banned the plaintiffs’ speech. Although the lawsuits have attracted much derision from legal scholars for getting the “First Amendment exactly wrong” by failing to recognize that it applies only to government actors, not private corporations, the core argument the Trump complaints make is not that Facebook, Twitter and YouTube are generally bound by the First Amendment but, rather, that the companies “censored” Trump and other class members’ speech because of what the complaints describe as the “overt coercion” of Democratic members of Congress. In other words, the Trump lawsuits make a First Amendment jawboning argument and one that clearly identifies Democratic members of Congress as the agents who were ultimately responsible for the violation of the plaintiffs’ First Amendment rights (even though, as is sometimes the case, the complaints name no government officials as defendants).
The second jawboning-related event was the July 15 release by the U.S. surgeon general, Vivek Murthy, of a health advisory warning of the perils to the national public health of social media-disseminated misinformation related to the coronavirus. The advisory and accompanying press conference, in which White House Press Secretary Jen Psaki announced that 12 people were producing 65 percent of the anti-vaccine misinformation on social media platforms and called on Facebook, in particular, to take “faster action against harmful posts,” generated a vigorous debate about whether the White House’s actions violated the First Amendment rights of Facebook and its users.
Read more at Lawfare