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.

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