At the Supreme Court oral argument in Murthy v. Missouri last week, few of the justices seemed prepared to rewrite the Court’s jurisprudence on jawboning, the practice of governments pressuring private actors to alter their speech decisions.

At issue was the Biden administration’s conduct in seeking to shape social media platforms’ content moderation related to COVID-19. It now appears that the Court will side with the Biden administration, reversing the decisions of the district court and the court of appeals. The most likely outcome, according to those skilled in counting justices’ votes, is that either the case will be dismissed due to lack of standing or that the Biden administration will prevail because its conduct was not “coercive.” The justices did not seem inclined to change the 60-year-old standard it uses to decide jawboning cases: Government “coercion” violates the First Amendment, but government “persuasion” does not.

When the Court announces its decision, at some point before the end of the term in June, the country will be six months away from a presidential election. As a new administration begins in January 2025, what will the state of jawboning be?

Given where the Court seems likely to land, jawboning will remain alive and well. That should be reason for concern. As law professor Derek Bambauer emphasizes, “most scholars decry” jawboning as “unfair, contrary to notions of limited government, and likely to impose unduly onerous regulatory burdens.” When governments use jawboning to achieve an outcome they could not—or choose not—to achieve through formal channels like rulemaking or legislating, they circumvent the transparency and public debate that is so critical to the democratic process.

To consider what jawboning might look like as a new administration gets underway in 2025, this post briefly examines three questions that could shape jawboning’s future:

  • How will government officials and company employees shift their conduct in response to the decision?
  • Will the Court’s test provide meaningful guidance in the long run?
  • Will an unsatisfying outcome in court create momentum for other options to govern jawboning?

How will government officials and company employees shift their conduct in response to the decision?

This is the most pivotal question for a new administration, for companies, and for the public. Will the court’s decision cause any change in how companies and government interact with each other on challenging questions about online content? Will it cause them to use more transparent channels to influence company decisions on content?

Probably not. Whichever presidential candidate is sworn into office in January, a decision in favor of the Biden administration means that government officials are extremely unlikely to change how they exert pressure on tech platforms in the next administration. Some officials could shift their tone and approach, wary of the prospect that their emails could make their way into future lawsuits, as several administration officials emails’ did in this case.

But others may simply shift from email communication to phones, without otherwise altering how they relate to tech company employees. A decision in favor of the Biden administration that affirms a murky coercion-persuasion test won’t compel policymakers to forgo the easy path of private pressure for the harder path of public debate. Congressional staff will still lean on people they know at tech platforms to moderate content in ways that are favorable to the members they work for. Executive branch officials will do the same. Jawboning will continue—and it will continue outside of the public eye.

Although this case focuses on interactions between U.S. government officials and U.S. companies and whether the U.S. executive branch violated U.S. law, the Court’s decision may have an impact outside of the United States as well. As Katie Harbath and I described in a prior post, and as scholars like Daphne Keller have emphasized, jawboning does not stop at the U.S. border: foreign governments do it too. What impact, if any, will the Court’s decision have on their conduct?

The question is particularly relevant in a country like India, where tensions between the government and platforms have been steadily increasing in recent years, and civil society organizations have raised concerns about the government's suppression of speech. In an assessment of digital rights in India, Freedom House noted its “concerns about government limits on online expression,” fueled in part by the establishment of a government fact-checking unit. Last month, the government seemed to retaliate against Google—due to an output from Google’s Gemini AI tool that was perceived by the government of India to be critical of Prime Minister Modi—by issuing an advisory requiring AI platforms to obtain government approval before releasing their products in India.

A decision establishing a clear prohibition on certain types of government pressure might give platforms and civil society organizations a tool to use in their efforts to push back against this type of pressure. The more likely outcome, a holding that the Biden administration’s pressure on social media companies is consistent with the First Amendment, could make it harder for advocates to make the case that similar tactics by foreign governments are out of step with free speech norms.

One positive outcome of a Biden administration victory would be the resumption of informational, educational exchanges on law enforcement, election disruption, and national security issues. The district court decision blocked that type of informational exchange, and chilling those communications has had an effect. Sen. Mark Warner raised concerns that as a result of the lower court rulings in the case, “we are less prepared in our elections in 2024 than we were in 2020.”

If the Biden administration wins, many of those types of informative, beneficial communications will resume. That change will be beneficial. As former Twitter Head of Trust and Safety Yoel Roth detailed in a post he wrote for this series, exchanges between government agencies like the FBI and platforms like Twitter are typically thoughtful and informative, and often welcomed by platforms seeking to learn information that will help them to police harmful content.

Another positive outcome will be the capacity for academic research to inform the policy process once again. The lower court decisions hamstrung academic researchers seeking to translate their work into policy debates, with leading research institutions like the Stanford Internet Observatory suddenly stymied by the court orders. The Court’s decision will likely enable academics to resume their regular interactions with companies and governments, and for those of us championing evidence-based public policy, the resumption of that type of communication is a positive outcome.

On the company side, a decision validating the Biden administration’s conduct probably won’t cause a significant shift in how companies handle jawboning, but it might cause some subtle changes. In our post, Katie and I emphasized that while many people may think that government jawboning occurs at the C-suite level, with the president or senators calling Mark Zuckerberg or Elon Musk, it more frequently occurs between more junior congressional staffers or White House staff, and more junior company employees on company public policy teams.

Historically, those employees might have been more inclined to accommodate: within companies, they are evaluated based on their ability to establish strong government relationships and to make problems go away. But it’s possible that the attention on the issue over the past two years may make them more inclined to escalate challenging interactions internally, and to ensure that more senior executives are brought into the decision-making process. More powerful individuals within a company may be more inclined to refuse a government request, at least in some instances.

It’s also possible that the public attention on jawboning could result in more insulation between companies’ content moderation functions and their public policy teams, but in my view, that’s unlikely. Public policy teams raise important equities on these issues, since they’re responsible for ensuring that lawmakers’ concerns inform a decision-making process that can otherwise be dominated by engineers, product managers, and sales leaders. If the policy team did not have a seat at the table in content moderation decisions, valid concerns from lawmakers might not receive the weight and attention they deserve. If the Court issued a strong, clear rule on government contacts with tech platforms, it would likely reduce government influence on companies’ conduct decisions. That might produce a commensurate reduction on the influence that policy teams have on content decisions within companies. But given where the Court seems headed, the case is unlikely to affect the role that public policy teams play in company decisions on content. In my view, that’s largely a positive outcome, though others may see it as a missed opportunity.

Will the Court’s test provide meaningful guidance in the long run?

The Court seems likely to affirm that Bantam Books is the proper test to delineate between permissible government conduct and unconstitutional jawboning. If it does, will the test provide meaningful guidance to government officials and company employees as they communicate with each other?

Probably not. During the argument, the Court considered a range of hypotheticals with farcically narrow distinctions, seeking to identify the line between coercion, persuasion, and the “significant encouragement” test used by the lower courts in this case. While those terms might have distinct meanings on a page, are there clear lines between any of those categories in reality?

A government official is clearly not coercing a private platform if it merely communicates that an editorial contains factual errors, but would it cross the line if it also said, “please take it down”? Is that only persuasion, or are those three additional words sufficient to transform permissible speech to impermissible? If the official refrained from using those three words, is it plausible that a company employee would think they weren’t implied? Is it only when the government says, “please take it down, and if you don’t, then the Justice Department will initiate criminal proceedings,” that the communication crosses the line to coercion? Is the communication merely “persuasion” if it comes from a lower level government official without the power to initiate criminal penalties, an antitrust enforcement action, or legislative remedies, but suddenly “coercion” if it comes from someone with more authority?

Based on my interactions with the congressional and executive branch staff when I worked for a social media company, my view is that this approach to the theory ignores the practical realities of interactions between governments and companies. Almost any time I was in a room in which a government official referenced a preferred outcome on a content question, I believed a threat was implied. If you don’t take action, your company might be the subject of a press release, a social media post, a hearing, or a congressional letter. Any of those outcomes would be problematic for a company, so company employees will try to avoid them if possible, whether or not the threat is explicit or merely implied. Of course, whether or not a company employee feels anxiety, apprehension, or fear in response to a government communication shouldn’t determine whether that government communication is either constitutional or appropriate. But a test premised on the idea that government “coercion” and government “persuasion” are clearly distinguishable does not account for the realities of the relationship between governments and platforms, and so it is unlikely to help us navigate the daily interactions between them.

One relevant consideration is that even though Bantam Books has become associated with the coercion-persuasion test, the text of the opinion suggests that there may be a better line. The only use of the word “persuasion” occurs in a phrase alongside “coercion”: The Court refers to “the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation.” Placing the two terms together in this list may suggest that the two terms have overlapping meanings for the purpose of First Amendment analysis. Nowhere in the decision does it state that “persuasion” is permissible.

The relevant distinction in the decision seems to be not between coercion and persuasion but between coercion and persuasion on one hand, and “aiding” or “advising” on the other. This language in Bantam Books suggests that a jawboning test might better reflect the realities of government-company interaction—and be easier to administer—if it used terms that are more like “advising” to describe permissible conduct. Perhaps the right dividing line should be between “advising,” “informing,” or “educating” on one side, and “coercion” and “persuasion” on the other. With stronger facts, future plaintiffs might be able to demonstrate why the coercion-persuasion test is inadequate to govern jawboning today.

Will an unsatisfying outcome in court create momentum for other options to govern jawboning?

Perhaps naively, I am holding out hope that the discussion this case has sparked on jawboning will not cease with the Court’s decision. A decision on the legal questions in this case need not foreclose other avenues for establishing stronger processes and guardrails to govern jawboning.

For instance, in January 2025, on the first day of the new administration, the White House could issue an executive order outlining how executive branch employees should interact with private companies on questions related to speech. The order could take many forms: it could outline types of prohibited conduct with specificity, or it could offer a set of principles and best practices that government officials might consider when they engage privately with companies.

Either way, the key feature of an executive order on jawboning would be the establishment of a set of norms to govern government behavior, even in the absence of a legal requirement to do so. In that respect, an executive order would borrow from the approach that administrations take on ethics, where they go beyond what is required by either the constitution or statute to outline in executive action the rules that will govern their time in office.

In addition, companies and the government could consider a wide range of process-based solutions that could help establish guardrails for jawboning. Using the notice-and-takedown system from intellectual property and the law enforcement data access process as models, they could require governments to make all content moderation requests through formal channels. Companies could establish intake mechanisms, as they do for law enforcement requests. Formalizing the process of receiving requests would make it easier for companies to track them and include them in transparency reports, which would bring more of this private policy making into the light.

Companies could also start reporting when they receive pressure from government officials that they deem to be inappropriate. Currently, a Federal Trade Commission official can report an ex parte communication from a private individual seeking to influence a government decision. Similarly, companies could report when they receive a communication from a government official that inappropriately seeks to influence a company decision on speech.

Into the Crystal Ball: Jawboning in 2025

The chance that any of these potential reforms become reality will diminish with a Supreme Court decision that affirms the status quo. Government officials probably won’t change their conduct if a Supreme Court decision tells them they did nothing wrong. And change on the company side is also unlikely. Companies have strong disincentives to push hard for changes to jawboning practice, for precisely the same reasons that jawboning is effective to begin with. Companies are wary of angering government officials who might take retributive action against them. In the wake of a Court decision affirming the government’s conduct, companies are unlikely to be willing to risk government ire to try to make changes to practices that the Court just validated.

The result is that jawboning in January 2025 will likely look like jawboning today: Governments will pressure tech companies to change their content moderation decision, and sometimes companies will relent. That outcome is not ideal.

Instead, government officials and companies should recognize the limits of whatever the Court decides, and use what we have learned from the productive public conversation of the past two years to establish stronger guardrails to govern jawboning.