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Censorship by proxy

At what point does government “jawboning” violate the First Amendment?

The Supreme Court building in Washington, D.C. Associated Press/Photo by J. Scott Applewhite

Censorship by proxy
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On Monday the Supreme Court confronted two cases asking the extent to which government officials may jawbone businesses into doing their dirty work, even to the point of suppressing the free speech of everyday Americans. Oxford Languages defines “jawboning” as an “attempt to persuade or pressure by the force of one's position of authority.” In May 1970, The New York Times noted the term’s emergence in common slang: “The word ‘jawboning,’ as used by most Government officials and businessmen these days, refers to public exhortations and/or implied threats by the administration as a means of convincing business or labor to adopt certain attitudes and policies.” The ultimate etymology is Biblical: It recalls the Old Testament Israelite hero Samson and his slaying of 1,000 Philistines with only a jawbone.

On the one hand, as Justice Elana Kagan pointed out at oral argument in the first of the two cases, “this literally happens thousands of times a day in the federal government.” By that she means that government officials cajole both the news media and the business community to do what they want—they call, write emails, spin facts, berate on Twitter, whatever it takes to shape the news cycle or the policy landscape. When it comes to the Biden White House’s efforts to take down disfavored content on social media—the policy that gave rise to Murthy v. Missouriit’s the intersection of both media and industry as they leaned on Silicon Valley tech companies to censor speech about vaccines and masks.

On the other hand, as Justice Samuel Alito raised in his questions, the government is not exactly innocent when it asks for things. The White House chief of staff is a powerful man. When he calls, even if he does not say it, the recipient may hear the subtext: “That’s a nice social media company you got there. Shame if anything happened to it, like an FTC/DOJ antitrust investigation.”

In the second case of the day, that’s much closer to what actually happened. The banking commissioner for the State of New York called numerous major financial institutions that she regulates—banks, insurance companies, etc.—and told them not to do business with the National Rifle Association. That’s not just the White House, which has generally policymaking authority, or the White House press secretary, who has zero enforcement power over anybody, but the specific responsible regulator calling those she regulates and asking for an action.

We’re rightly squeamish about the idea that governments can violate our rights as long as they do it through a third party.

Throughout both arguments, the justices struggled to find a coherent line they could draw that they could carry through in future cases. Presidents need their bully pulpit to do their job effectively. A president’s power to, for instance, sit a feuding union boss and corporate CEO down and tell them to strike a deal before the nation’s economy shuts down is an important tool in his executive toolbox. At the same time, we’re rightly squeamish about the idea that governments can violate our rights as long as they do it through a third party, especially in the highly integrated world of the 21st century. Cancel culture is bad enough already when activists set out to destroy someone’s career, privacy, and reputation—adding the government to the mix as the doxxer-in-chief would be devastating for the public square.

Indeed, as Justice Stephen Breyer wrote in one of his final opinions, the marketplace of ideas in this country can only function when all ideas, especially controversial or challenging ideas, are safe within the First Amendment’s ambit: “That protection must include the protection of unpopular ideas, for popular ideas have less need for protection.” That’s exactly right. The elites, the wealthy, the insiders, the people who agree with the powers-that-be, they don’t need the protection of the First Amendment—they’ve already got the government on their side. It is those who hold dissident ideas, minority views, and unpopular convictions who benefit from the bulwark provided by the Bill of Rights.

If the Supreme Court rejects the plaintiffs’ claims in these cases, hopefully it at least does so in a way that does not grant a permit for open season with the full power of the federal government.

Daniel R. Suhr

Daniel R. Suhr is an attorney who fights for freedom in courts across America. He has worked as a senior adviser for Wisconsin Gov. Scott Walker, as a law clerk for Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit, and at the national headquarters of the Federalist Society. He is a member of Christ Church Mequon. He is an Eagle Scout, and he loves spending time with his wife Anna and their two sons, Will and Graham, at their home near Milwaukee.

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