Document Type
Article
Publication Date
2024
Abstract
Jawboning is government enforcement through informal channels, where the underlying authority is in doubt. Government actors at all levels have increasingly deployed this tactic to pressure Internet platforms to suppress disfavored speech. Internet jawboning debuted at the Supreme Court in two cases (National Rifle Association of America v. Vullo and Murthy v. Missouri) in 2023. Although the Court disposed of both cases on procedural and standing grounds, rather than offering a new methodology for evaluating jawboning, the opinions offer examples of what a successful jawboning claim looks like and what an unsuccessful claim lacks. Thus, jawboning as a species of First Amendment violation is alive and well. This Article briefly describes the two opinions. Next, it assesses the guidance that the cases provide about jawboning for future plaintiffs, scholars, and courts. Lastly, it argues for a more explicit test for jawboning violations. The proposed test has three factors: the threat made by a government actor, the authority that the government actor possesses to justify this threat, and the power at the actor’s disposal to implement that threat. This three-part test would both guide courts in determining when jawboning occurs and focus attention on the most problematic instances of the phenomenon.
Recommended Citation
Derek Bambauer, The Jawboning Cases End with a Bang Disguised by a Whimper, Cato Supreme Court Review 2023-2024, 157.
Included in
Computer Law Commons, Constitutional Law Commons, Internet Law Commons, Law and Society Commons