After major rulings on abortion and affirmative action, the Supreme Court doesn't have anything quite so explosive on its docket for next term, which begins in a few weeks. As we turn from the phony war over judicial ethics to legal substance, social media regulation is about to take center stage.
The Justices will hear argument this fall in two cases that ask whether public officials violate the First Amendment when they block people on social media using accounts that issue communications on job-related matters. (The Second Circuit had previously ruled against President Donald Trump's blocking people on Twitter, but the Supreme Court vacated the decision and mooted the case when Trump left office.) And the Court will almost certainly grant petitions arising from a split in the lower courts over Florida and Texas laws that treat tech companies as common carriers, preventing them from engaging in viewpoint discrimination. But this summer, a new social media issue emerged that may well swamp these in public importance: jawboning.
Jawboning occurs when the government applies pressure to private companies to take certain actions. In the context of social media, elected and appointed officials increasingly demand that platforms refrain from publishing disfavored speech, or take steps to limit its spread. Sometimes they threaten tech companies with punitive legislation, antitrust investigations, and prosecution. But the pressure can also be more informal.
Two examples gripped the news cycle recently: the censorship of posts relating to COVID policy, election integrity, and Hunter Biden's laptop as detailed in Missouri v. Biden, where a federal judge enjoined officials from meeting and coordinating with social media companies; and revelations that have come out of the House Subcommittee on Government Weaponization. Our employer, the Manhattan Institute, has grappled with jawboning before, filing an amicus brief in Changizi v. Dept. of Health & Human Services (currently pending before the Sixth Circuit), which deals with collaboration and collusion between public and private actors to suppress speech.
Jawboning isn't a new topic for the Supreme Court. In Bantam Books v. Sullivan (1963) a state commission identified "objectionable" books to prevent booksellers from carrying and, in a letter, "thanked" the Bantam Books proprietor "in advance, for his 'cooperation' with the Commission." Shortly after, a police officer began visiting the establishment to "learn what action he had taken." Since the commission's "objectionable" standard was "far short of the constitutional requirements of governmental regulation of obscenity," it constituted "informal censorship" outside the permissible scope of regulation and violated the First Amendment. But Blum v. Yaretsky (1982) confirmed that the "mere fact" of regulation, even if substantial, doesn't necessarily convert private action into government action. There must be a "sufficiently close nexus between the State and the challenged action" such that the latter "may be fairly treated as that of the State itself." As the Manhattan Institute's Changizi brief identified, that's the central inquiry in all these cases: whether the challenged private action constitutes state action.
Circuit courts have been grappling with this question throughout our decades of transition from the analog to the digital world. In 1987, the Ninth Circuit found a deputy county attorney's threat to prosecute a telephone company if it didn't cease carrying a third-party service to be unconstitutional. In 2015, the Seventh Circuit found the Cook County (Chicago) sheriff's request to Visa to "immediately cease and desist from allowing [its] credit cards to be used to place ads on websites like Backpage.com" and provide a contact to work with on the issue to be unconstitutional as well. The sheriff's letter made clear that he was acting in his official capacity, making Visa and Mastercard "victims of government coercion."
The Ninth Circuit's recent contrary rulings regarding social media-related claims should clarify our understanding of impermissible jawboning, even if the court's reasoning is unconvincing. In November 2022, the court found that coercive government actions were only "tangentially related" to YouTube's content moderation. It declined to find that actions like Rep. Adam Schiff's (D-Calif.) letter "encouraging" YouTube and Google to curb "COVID-related misinformation" and the subpoenaing of Google's CEO, or even a Justice Department antitrust lawsuit, rise to the level of a First Amendment violation. And in March 2023, after the court noted that a crucial part of determining compulsion in jawboning cases is whether "the intermediary is free to disagree with the government and to make its own independent judgment about whether to comply with the government's request," it found that a "specific request" by California's Office of Elections Cybersecurity to remove content to be "purely optional." A cert petition in that case, O'Handley v. Weber, is now pending before the Supreme Court.
Missouri v. Biden shows that jawboning's threat can't be understated. In one instance where White House officials pressured Twitter to remove a parody account of a Biden family member, they told the company they could not sufficiently "stress the degree to which this needs to be resolved immediately." Twitter removed the account within 45 minutes. And the Biden administration pressured Facebook on numerous occasions regarding "what actions and changes you are making to ensure you're not making our country's vaccine hesitancy problem worse." The former instance recalls Bantam Books, while the latter evokes the Backpage case. Given the specific directives from the White House, these actions plainly violate the First Amendment, turning the tech companies into government agents.
When the Fifth Circuit heard the appeal of the district court's injunction, it seemed likely to affirm. Judge Jennifer Elrod saw a "very close working relationship" between the Biden administration and social media companies, while Judge Don Willett characterized the relationship as: "That's a really nice social media platform you got there—it would be a shame if something happened to it." The case is clearly on a fast track to the Supreme Court.
In short, state-action questions have come to dominate the world of social media, where government and private speech and action blend in novel ways. A Court that's been highly protective of Americans' First Amendment rights isn't likely to take kindly to government attempts to control information flows that it can't directly censor.
Ilya Shapiro is director of constitutional studies at the Manhattan Institute (MI), where David Sacks is a law school associate. MI filed an amicus brief supporting the parents whom school-board officials blocked in O'Connor-Ratcliff v. Garnier, which the Supreme Court is hearing this fall.
The views expressed in this article are the writer's own.
Uncommon Knowledge
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
