![]() These decisions make intuitive sense: the government shouldn’t be able to use threats to strong arm third parties into stifling protected expression. The letters referenced potential criminal liability under a federal money-laundering statute, and implied that the companies could be prosecuted for their role in processing payments associated with illegal sexual activities. The sheriff had sent letters to Visa and Mastercard demanding that they cease and desist allowing their credit cards to be used to place any ads on the site. Dart, the Seventh Circuit held that a sheriff’s efforts to shut down a website’s adult section also violated the First Amendment. The Court found that the letters were “informal censorship” intended to intimidate rather than persuade the booksellers to comply with the commission’s request. Sullivan, the Supreme Court held that a state commission violated the Constitution when it sent notices to booksellers threatening prosecution unless they removed books it deemed offensive and obscene from circulation. It surely can’t be a violation of the First Amendment for the government to call out this falsehood.Īt the same time, the government shouldn’t be able to circumvent First Amendment protections by using informal means to coerce platforms to suppress or remove speech the government doesn’t like. Imagine if the government couldn’t reach out to a (non-satirical) newspaper that published an inaccurate story declaring that the president was giving out free puppies to every U.S. Courts have recognized this interest through the government-speech doctrine, which gives government officials the latitude to decide which of the many statues to display in a public park, or, to use a hypothetical cited by the Supreme Court, to create and distribute millions of pro-war posters during World War II without an obligation to “balance the message” with millions of anti-war posters. The government needs to speak – including to private actors – in order to govern. Jawboning sometimes carries with it an express or implied threat of regulation or other adverse consequences if the entities don’t adhere to the government’s requests.īut not all government speech directed at private parties raises constitutional concerns, nor should it. This case is the latest in a series of court challenges against alleged government “ jawboning,” a term that describes informal efforts by government officials to persuade or pressure private entities, in this case, related to speech. Instead, it hamstrings the government’s ability to communicate and act on pressing issues of public importance without providing any real guidance in identifying the supposed coercion that infringes the Constitution. ![]() There are lines that could potentially be drawn to guide these interactions, but this opinion doesn’t provide them. While the court’s opinion reads as a free speech paean, it fails to provide a coherent explanation of how the government’s actions – a series of public statements and private communications between federal officials and the platforms that span the Biden and Trump presidencies – violate the First Amendment. It bars the Executive Branch from engaging with social media platforms on almost any content-moderation related issues, with some exceptions related to criminal conduct, national security, foreign attempts to influence elections, and similar risks to public safety. Doughty issued a sweeping preliminary injunction restricting government officials’ communications with social media platforms. ![]() Biden and the First Amendment on the Just Security Podcast. ![]() ( Editor’s Note: The author shares their insights on Missouri v. ![]()
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