For years now, scholars have expressed alarm at the tendency of government officials to pressure—or “jawbone”—social media companies into taking down what the officials consider to be harmful or offensive speech, even when no law requires it. Scholars have worried, for good reason, that the practice of jawboning allows government officials to evade the stringent constraints on their power to regulate speech imposed by the First Amendment. But relatively little attention has been paid to the constitutional question of whether, or rather when, government jawboning itself violates the First Amendment. In fact, answering this question turns out to be quite difficult because of deep inconsistencies in the cases that deal with jawboning, both in the social media context and beyond. In this talk, I will explore what those inconsistencies are, why the case law is so unclear about where the line between permissible government pressure and unconstitutional governmental coercion falls, and what kind of jawboning rule might be necessary to protect free speech values in a public sphere in which both private companies and government officials possess considerable power to determine who can and cannot speak.
