On October 20, 2023, the Knight Institute hosted a closed convening to explore the question of jawboning: informal government efforts to persuade, cajole, or strong-arm private platforms to change their content-moderation policies. Participants in that workshop wrote short notes to outline their thinking on this complex topic, which the Knight Institute published in the weeks leading up to and after the convening. This blog post is part of that series.

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Government co-option of the content moderation systems of social media companies is a serious threat to freedom of speech, but there are clearly times when government agencies and officials can and, as a matter of public policy, should noncoercively communicate with social media companies about the user speech the companies publish on their sites.

The messy interaction of these competing interests is reflected in a poorly defined legal test, resulting in an abundant gray area. The distinction between proper and improper speech is often as obscure as a matter of legal doctrine as it is of colloquial perception.

The Supreme Court will have the opportunity to clarify the legal standard in Murthy v. Missouri. But it is unlikely to completely clarify that gray area because these competing interests ultimately require a highly specific, contextual, totality of the circumstances, case-by-case analysis. Outside of blatant, open coercion under the threat of criminal prosecution for noncompliance, there will be few bright lines.

Rather than fight this gray area, we need clearer thinking about how to navigate it. To me that means that the government should bear the onus of making sure that its conduct conforms to the law, that is, that it is clearly not trying to replace the company’s editorial decision-making with its own. It is the government’s responsibility to take care that its communications are rightfully perceived as being merely persuasive but not coercive.

The Law

Bantam Books

The First Amendment test historically used to assess the constitutionality of government “jawboning” of speech intermediaries, from Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 71 (1963), recognizes the competing interests discussed above. In one respect, the Bantam Books rule is simple: The First Amendment forbids the government from intimidating or coercing a private entity to censor another. Id. at 66–67. The case also recognizes that not every communication to an intermediary about users’ speech is unconstitutionally coercive. See id. at 71–72.

If only direct coercion were forbidden, then courts could probably decide these cases simply by looking for an explicit threat to use the power of government to penalize the intermediary for not doing the government’s bidding. This could be the threat of criminal prosecution or some other serious government sanction. Courts might look to whether the government agency or official that made the threat had the authority to carry it out just to make sure that the threat was genuinely coercive.

But the Supreme Court rightfully recognized the unconstitutionality of indirect coercion as well, where the threat is implicit rather than explicit. This has been an important principle in countering efforts to threaten and pressure intermediaries like bookstores, as in Bantam Books, and credit card processors, see Backpage.com, LLC v. Dart, 807 F.3d 229, 230–31 (7th Cir. 2015) ,1 1. The case involved a sheriff’s campaign to shutdown Backpage.com’s adult section “by demanding that firms such as Visa and MasterCard prohibit the use of their credit cards to purchase any ads on Backpage.” Id . at 230. On official letterhead, the sheriff demanded that the credit card companies “cease and desist” allowing payments for Backpage.com ads, citing the federal money-laundering statute. Id. at 231–32.to limit others’ speech. Indirect coercion is inherently a more amorphous concept. Thus, the unavoidable gray area.

Bantam Books itself does not provide much general guidance on how to identify indirect coercion and, more broadly, how to distinguish unconstitutional attempts to coerce from permissible attempts to convince. The Second Circuit has identified four relevant factors, with no single one being dispositive: “(1) word choice and tone; (2) the existence of regulatory authority; (3) whether the speech was perceived as a threat; and, perhaps most importantly, (4) whether the speech refers to adverse consequences.” Nat’l Rifle Ass’n of Am. v. Vullo, 49 F.4th 700, 715 (2d Cir. 2022), cert. granted (Nov. 3, 2023) (citations omitted). The Seventh Circuit in Backpage,807 F.3d 229, looked at word choice and tone,2 2. The court found that the letter constituted an “implied threat” because it was written in the sheriff’s official capacity, “invoke[d] the legal obligations of [the] financial institutions to cooperate with law enforcement,” and required further ongoing contact from the companies following the request. Id. at 236. The letter was not simply an effort to educate the recipients “about the nature and possible consequences of advertising for sex; he told them to desist or else.” Id. at 237. Because of the threatening language, the letter was not “a permissible attempt at mere persuasion.” Id. at 238.whether the government had a clear intent to coerce, and whether the letter achieved its coercive goals. Id. at 232–33.

Other courts have also considered whether it contained either a legal3 3. See R.C. Maxwell Co. v. Borough of New Hope, 735 F.2d 85, 88(3d Cir. 1984) (finding no coercion where the government “brandish[ed] nothing more serious than civil or administrative proceedings under a zoning ordinance not yet drafted”); Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011, 1015(D.C. Cir. 1991) (finding no coercion where the letter contained “no threat to prosecute, nor intimation of intent to proscribe the distribution of the publications”).or economic4 4. See R.C. Maxwell , 735 F.2d at 87.threat. If legal, the court may inquire whether the government threatened criminal prosecution or merely a routine administrative action. For economic threats, courts will usually note where an intermediary in some way relies on the government’s favorable opinion for preference in securing future contracts, advantageous legislation, or some other public benefit.5 5. Id. at 87 (Citibank “denied that any explicit quid pro quo was contemplated or suggested, but admitted that Citibank’s desire to stay in the Council’s good graces was certainly a motivating factor.”).

Courts readily find coercion when the government agent has the authority to bring about the threatened consequence and tend to find the communication permissible when the agent affirmatively, genuinely disclaims any authority or intent to sanction.6 6. See id. at 86 n.2 (“We are writing to solicit your personal assistance in order to alleviate an ongoing situation in our community by a professional agreement rather than legal procedures.”); VDARE Found. v. City of Colorado Springs, 11 F.4th 1151, 1157 (10th Cir. 2021), cert. denied, 142 S. Ct. 1208 (2022) (finding no coercion where the mayor issued public statement against hate speech and encouraged businesses to be attentive to the “types of events they accept” but acknowledged his lack of authority to restrict freedom of speech).

Courts are also more likely to find coercion when the government identifies specific objectionable speech and to find no coercion when the government disapproves of a broad category of speech.7 7. Compare Carlin Comms., Inc. v. Mtn. States Tel. & Tel. Co., 827 F.2d 1291, 1295 (9th Cir. 1987) (finding coercion when deputy attorney advised telephone company to terminate the plaintiff’s “salacious” messaging service under threat of prosecution), with NRA , 49 F.4th at 716–17 (finding no coercion where government official sent guidance letters and issued press release encouraging regulated entities to “continue evaluating and managing their risks . . . that may arise from their dealings with the NRA or similar gun promotion organizations” in the wake of Parkland shooting (emphasis added)).

A government communication may also be found persuasive rather than coercive if instead of a threat it includes a reasoned argument for the censorship rather than a threat of penalty.8 8. Hammerhead Eterns., Inc. v. Brezenoff, 707 F.2d 33, 36 n.2 (2d Cir. 1983), cert. denied, 464 U.S. 892 (1983) (finding no coercion where the letter stated “Your cooperation in keeping this game off the shelves of your stores would be a genuine public service.”); Kennedy v. Warren , 66 F.4th 1199, 1204 (9th Cir. 2023) (finding no coercion where the letter stated that “[c]onspiracy theories about COVID-19 abound” and “have led to untold illnesses and deaths” (alteration in original)).

Whether the government actor took further action or communication after the initial request is also relevant.9 9. Kennedy , 66 F.4th at 1209(“An interaction will tend to be more threatening if the official refuses to take ‘no’ for an answer and pesters the recipient until it succumbs.”).Immediate and serious follow-up communications “continually reinforce[]” the request and thus cause the intermediary to reasonably interpret it as mandatory. VDARE , 11 F.4th at 1167.

Government requests that utilize an existing channel of communication to reach the intermediary, particularly where the intermediary welcomed or solicited the government’s input or expertise, tend to be seen as noncoercive.10 10. See O’Handley v. Weber, 62 F.4th 1145, 1163 (9th Cir. 2023) (finding no coercion where “OEC communicated with Twitter through the Partner Support Portal, which Twitter voluntarily created because it valued outside actors’ input”).

Lastly, courts are likely to view interactions with major power imbalances between the government actor and the targeted intermediary—such as where law enforcement is involved11 11. “[T]he emerging tactic of law enforcement officials in targeting ISPs with ‘requests’ that they take down websites that officials find problematic raises, in modern form, the threats to free expression implicit in any mechanism of prior restraint.” Seth F. Kreimer, Censorship by Proxy: The First Amendment, Internet Intermediaries, and the Problem of the Weakest Link, 155 U. Pa. L. Rev. 11, 76–77 (2006) ; see also Kennedy , 66 F.4th at 1210(“A similar letter might be inherently coercive if sent by a prosecutor with the power to bring charges against the recipient, or if sent by some other law enforcement officer[.]” (citation omitted)); Rattner v. Netburn , 930 F.2d 204, 209 (2d Cir. 1991) (“[U]nannounced visits by police personnel” are relevant to consideration of an implied threat).—as more conducive to bullying or intimidation.12 12. Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1123 (11th Cir. 2022) (“[T]he students targeted here are—for the most part—teenagers and young adults who, it stands to reason, are more likely to be cowed by subtle coercion than the relatively sophisticated business owners in those cases.”); see also Derek E. Bambauer, Against Jawboning, 100 Minn. L. Rev. 51, 103–106 (2015) .

State action

As either an alternative or supplement to Bantam Books, courts might also look to the state action doctrine. This makes sense because in jawboning cases the ultimate question is really one of state action: Is the censorship performed by the intermediary properly treated as action by the state?

Moreover, one state action theory also focuses on coercion. This is the test, derived from Blum v. Yaretsky, 457 U.S. 991 (1982), applied by the Fifth Circuit in Missouri v. Biden, 83 F.4th 350, 373–74 (5th Cir. 2023).

Other articles in this series have understandably criticized this approach because Blum finds state action not only with coercion but also where the state “has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum, 457 U.S. at 1004.

While I understand the concern that a line between acceptable “encouragement” and “such significant encouragement” as employed in Blum is an extremely difficult one to draw, there does not seem to be much difference between “indirect coercion” from Bantam Books and its progeny and “such significant encouragement” from Blum. Each is a multifactored, highly contextual, case-by-case analysis that largely considers the same factors. Rather than fight the relevance of the state action doctrine, it’s more productive to urge courts to cabin “such significant encouragement” by equating it with indirect coercion.

Navigating the Gray Area

Like it or not, we are stuck with fuzzy concepts and highly contextual analyses.

In order to honor the competing interests—to ensure that government does not coerce private censorship while preserving government’s productive role in opining on others’ speech in certain circumstances—the onus must be on government to ensure that its communications are clearly noncoercive. When government speaks to speech intermediaries about the speech they carry, it must do so with great care and with a keen awareness of its inherent coercive power and potential for intimidation.

Of all the parties participating in such communications, government speakers are clearly best placed to do this. It is part of government’s broader duties to respect rights. And it may easily start with training government speakers to include affirmative disclaimers—e.g., “while we believe this is the right thing to do, the ultimate decision remains yours and you will not be penalized for making your own decision” in pertinent communications.

Moreover, there is a diminished risk of chilling effect on government speakers. Government speech on matters the government cares about tends to be quite hearty and often politically motivated. The fear of close-case litigation tends not to discourage government speakers since it has the world’s largest law firm at its ready disposal (and with no fees charged).

In legal challenges this means that in close cases, courts should err on the side of finding coercion and vindicating the rights of those who have been censored.