Genevieve Lakier:

Samson was, I’m not a Bible expert, but the story is that he kills something like a thousand men using only the very weak tool, which is the jawbone of an ox. He’s that strong and that blessed, and so it means to use weak instrument to achieve something really powerful.

Evelyn Douek:

Okay, great. Not a new term and not just about social media companies and apparently far more gory and violent than I realized.

Genevieve Lakier:

And biblical strangely.

Evelyn Douek:

Yeah. Right. Hello, and welcome to Moderated Content, stochastically released, slightly random and not at all comprehensive news update from the world of trust and safety with myself, Evelyn Douek, and we have a special episode for you today. We are coming to you midweek this week to talk about the latest content moderation happenings at the Supreme Court. On Monday, the court heard oral arguments in Murthy V. Missouri, a case that we’ve been following for a while on the pod and which many of our listeners are, no doubt, familiar with. They’re also, no doubt, familiar with our, I think, official jawboning correspondent at this point, professor Genevieve Lakier from the University of Chicago, who has kindly joined us to talk through impressions of oral arguments. Thank you very much, Genevieve.

Genevieve Lakier:

Oh, as always, happy to be here.

Evelyn Douek:

Excellent. Okay. As many of our listeners no doubt know this case is about jawboning. The allegation is that various members of the Biden administration unconstitutionally jawboned the social media platforms into removing people’s content and various items of speech. Actually, I want to start with something which we surprisingly haven’t talked about on the podcast so far about this is the word, jawboning, because I’ve seen some speculation in discussion about this case, about where the word comes from or what it means and some dissatisfaction with it, and I quite like it. I guess, as a defense of the word, what is jawboning? Where does the word come from? Why do we use it in this context?

Genevieve Lakier:

Okay, great. That’s a great question because I think people get confused. They think, and I sort of like this too, that jawboning means to use your jawbone a lot, like jaw up and down until someone does what you want them to do. But that’s not the origin of the term. Supposedly, it has a biblical reference. Samson was, I’m not a Bible expert, but the story is that he kills something like a thousand men using only the very weak tool, which is the jawbone of an ox, he’s that strong and that blessed, and so it means to use weak instrument to achieve something really powerful. At first enters the lexicon in I think the 50s and the 60s when it starts to be used in the newspapers to refer to presidents using the bully pulpit and threat of, in some cases, like antitrust investigations against big businesses who are refusing to do what the presidents want them to do.

There’s this famous Kennedy jawboning speech, which he gives in the early 1960s in an effort to get the steel companies not to raise their prices. As this example suggests, the history of the term is not really particularly about the first amendment or speech at all, but today, of course, this is primarily what it’s used to refer to, government efforts, informal efforts to get speech companies, speech intermediaries like the social media companies to suppress or keep up speech.

Evelyn Douek:

Great. Not a new term and not just about social media companies and apparently far more gory and violent than I realized. Right. Excellent. Okay. With that stage setting then, if that’s the history of the term jawboning, let’s talk about the history of this particular jawboning or these jawboning allegations, and so the case which we have talked about on this podcast a number of times but I think would be just useful scene setting to remind our listeners, how did we get here? How did we get to this point where the Supreme Court was hearing oral arguments in this case on Monday? What are sort of the general facts of the claim and what’s its procedural history?

Genevieve Lakier:

Okay, great. Social media users who believe that their speech was taken down as a result of government pressure, particularly the pressure of the Biden administration. These are anti-vaxxers, people who are spreading conspiracy theories about the election, other dissident speakers, shall we say, have been filing suits, jawboning suits under the 1st Amendment for quite a few years now. There’s been a rush of these cases in the courts, but in almost all cases they’ve been knocked out on at a very early stage and they’ve been brought by individual litigants, often not well-lawyered, and they’ve been pretty easy or pretty summarily dismissed.

In this case, however, this was a more elaborate effort. The attorney generals from two states plus five individuals who say they were censored or their speech was suppressed because of Biden administration pressure seek an injunction against a huge sprawling range of government defendants and they decide to file suit in a district in the 5th Circuit in Texas where they have a sympathetic judge. Because of this, the judge, I think very unusually for these kinds of cases, permits the case to proceed to injunction or to discovery, so we get a kind of limited discovery, which is very rare in jawboning cases, and produces this elaborate factual record that poor everyone now has to deal with thousands and thousands of pages of discovery and complicated and sprawling allegations against dozens, if not hundreds, of government defendants.

Then also, very unusually, fines for the government, at least at a preliminary injunction stage, so enjoins huge swaths of the federal government, the executive branch, and enjoins them from basically don’t violate the 1st Amendment but hasn’t really defined what the 1st amendment means, we talked about this in an earlier podcast, and so brings a huge amount of the communication and collaboration between the federal government and the platforms to a halt.

This is then appealed as you, unsurprisingly, and the 5th Circuit limits the injunction, but mostly substantively affirms the district court. Then, there’s this appeal to the Supreme Court to stay this injunction, so that it doesn’t go into force until the Supreme Court gets to hear the case. Even then, this is an incredibly contentious case I think in part because, as we’ll talk about, there’s a lot of culture wars stuff going on. There’s, I think, Thomas, Alito and Gorsuch, a dissent from the court’s decision to stay the enforcement of the injunction. They want this to go into immediate effect, but it is stopped and then the court hears arguments. It’s been a quite elaborate and highly contentious journey here.

Evelyn Douek:

Yeah. You say poor everyone having to deal with, I think it’s like a 20,000 page factual record, or at least that’s what the lawyer from Missouri was saying in oral arguments on Monday. In some ways, of course, that is very unwieldy to have to deal with. But, of course, in some ways, it also means that people can pick and choose facts as suits their narrative as they’re trying to talk about this case and it’s one of the things that makes it really difficult to sensibly talk about this case because we can sort of describe in broad terms what this case is about, but obviously there’s a lot going on here if the factual record is that complicated and developed.

One of the things, and we talked about this at length last time, but I think it’s worth underlining as well as we go on to talk about this, is that the allegations run the gambit of a whole lot of various different kinds of government actions. They go from President Biden telling a bunch of reporters they’re killing people, and originally talking about the social media platforms and their failure to moderate COVID misinformation and saying this in public, this allegation that the platforms are not doing enough in very passionate language to individual emails from White House staffers to direct employees of the platforms about particular pieces of content and a whole wide variety of things in between, including statements by the Press Secretary and the various people talking about antitrust action or section 230 reform.

It’s very unwieldy and hard to describe exactly what we’re talking about when we’re talking about how the plaintiffs allege the government pressured the platforms to take certain steps and exactly what steps the government actors were requiring for platforms. I think it’s just sort of important to lay that out as we go forward in talking about this, because in terms of trying to work out exactly what the legal test is or exactly what happened in this case, it’s important to be specific that we’re talking about a whole wide variety of different things.

Genevieve Lakier:

Yeah, especially if we think, as it seems clear that the members of the court think, and certainly all the cases suggest we should think that context and specific facts and relationships matter. Having this wide range of allegedly unconstitutional acts, defendants harm parties, platforms, and just incidents, dates, makes it really, really hard to work through. I said poor everyone, it’s clear that this was a strategy on the part of the plaintiffs that they wanted to bring such a broad, factual record because they wanted to make, I think, a political claim that this was an unprecedented kind of censorship campaign. But I think also because their strategy has been to smush everything together in an effort to say, “Okay, if we put it all together, then surely there’s some unconstitutional action that the Biden administration is responsible for.” But it does make it really hard, I think, for judges and for litigants and for scholars to try and figure out, is there a problem? What’s the problem? How do we think about all these different acts, actors?

Evelyn Douek:

Right. Ordinarily, you would rely on the judicial system and the judiciary to help filter through those facts and develop a sensible factual record, and I think that’s one of the things that has been very concerning from the start about this case is lack of care with the facts both by the plaintiffs and by the lower court. I think it’s worth talking about this because one of the things I think that was helpful in the court on Monday, and I certainly was pleased to see, was they were getting a lot of pushback from members of the court about this particular point and about how their use of the facts, I think.

Just to quote, Justice Kagan was very interested in this in a number of points in an argument, but the person that hit at home the hardest was Justice Sotomayor who said, “I have such a problem with your brief counselor,” talking to the lawyer for Missouri. “You omit information that changes the context of some of your claims, you attribute things to people that didn’t happen to, I don’t know what to make of all of this because I’m not sure how you get to prove direct injury in this way.” She’s really going for it. Her voice, she said it much more passionately than I did. I guess, I’d love you to talk about that a little bit. What is she talking about and why is this important?

Genevieve Lakier:

Well, yeah, I don’t know how non-lawyers would read that, but for lawyers, I think there was this collective gasp. You never want a Supreme Court justice saying that about you. What was amazing was the lawyer representing the plaintiffs did not push back, did not say, “Oh, you misunderstand, this is correct.” He just admitted error, which wow, it was a very dramatic lawyerly moment.

Evelyn Douek:

Or he apologized. I don’t think he admitted specific error, but he said, “I’m really sorry if we weren’t as forthcoming or fulsome as we should have been,” something along those lines.

Genevieve Lakier:

Yeah, really incredible. But I think this is another reason why poor everyone. It’s hard to make sense of this case because a lot of the facts, by the time you get to the Supreme Court, you’re supposed to be analyzing, debating the higher principles, but you’re not supposed to be disagreeing about the basic facts. Now, it is true that there’s lots of factual disputes, and in recent years, there’s been lots of pretty angry and contentious disagreements about various, the factual assumptions that the court makes. I’m thinking here about the Kennedy 1st Amendment case and 303 creative, there was a lot of fighting about the facts, so it does seem like in these 1st Amendment cases, facts are actually often much more in dispute than you would think they would be at this stage in the game.

But I think this is on another level altogether. There are so many factual problems with the record, and I guess ordinarily I would say it was bad lawyering, but I think in a way it was good lawyering that this was intentional, that the plaintiffs were very fast and loose with the facts because they knew that they were speaking to judges who weren’t going to push them very much. What is amazing is to get to the Supreme Court and have both the district court and the 5th Circuit not really push back on the facts, and so it is left up to Kagan and Sotomayor to raise the obvious point that there’s a lot of deliberate obfuscation and lies.

I think actually, Evelyn, I think Stanford, your employer, they filed an excellent amicus brief in this case as they did at the 5th Circuit pointing out just listing one after the other the factual claims that were just completely wrongs made just about them. The election integrity project and just the Stanford Internet Observatory, it’s alleged to have participated in this grand censorship scheme of the government, but it’s only a tiny part. There’s this many factual errors about these defendants, about these alleged co-conspirators, in a sense, it’s just incredible to think about how many other kinds of factual claims are wrong.

But just to give an example, there’s one claim that the election integrity project, they censored 22 million tweets and labeled them as a misinformation, which is an incredible assertion. But it turns out that actually I think they flagged only something under 5,000, and they mentioned the fact that there might be 22 million tweets that are relevant to the analysis of misinformation that they’re performing, but they didn’t flag anywhere near that number. There are dates that are wrong, there are words that are attributed to people that they never said, there are words that are omitted, and this is going to be relevant to the standing discussion. There are plaintiffs here who are alleged that they were harmed by the Biden administration’s campaign of jawboning and censorship, but whose speech was taken down by the platforms before the Biden administration took office. Stuff like that is just mind-boggling that it gets to the Supreme Court before it gets called out.

Evelyn Douek:

Yeah, absolutely. We’ll link to the Stanford Amicus brief in the show notes and also to a blog post from the Stanford Internet Observatory outlining these factual errors made, in particular about SIO and the election integrity partnership, and of course, my colleagues. This is not something that I’m unbiased about. It’s making direct misstatements about Alex Stamos and my colleagues at the Stanford Internet Observatory, including Rene DeResta, in pretty shocking ways, like just complete blatant misattributions, misquoting. It’s a great brief, I was really pleased to see Stanford filing this brief. I think it’s just, as you say, one example of the many ways in which this wasn’t careful, but that raises a different problem, I guess, because this wasn’t a careful complaint. This was not a carefully analyzed by the lower courts, and it is very much a product of the culture wars. This feeds into the narrative of conservative states, conservative politicians and culture warriors feeding into this narrative of that big tech is biased against them and is clamping down on conservative speech and furthering the leftist woke narrative.

I think the temptation then is to say, “Well, this is just a completely silly case that doesn’t matter at all, and we should just dismiss it as another sort of product of the culture wars and that we don’t really need to worry about any substantial issues here.” I guess, I think that would be a real shame, and I know you think that that would be a real shame too, and I guess I’d just like to hear you say why. Why is this case important despite the fact that it’s a product of this political milieu?

Genevieve Lakier:

Yeah. I was really frustrated after the arguments because I thought that, to a degree, that was not true a few weeks ago when the court heard the arguments in the net choice cases about the Texas and Florida content moderationals, where there were interesting alliances, the justices did not say what you predicted them that they would say. They didn’t fall along neat partisan lines. I thought, in this case, it was much more partisan, a set of arguments where the liberal justices were very unsympathetic to the claims, the conservative justices were very sympathetic, even if that required them to take positions that were inconsistent with their previous positions on terms of how we think about the 1st amendment and state action and standing and all of that. It did really, listening to the arguments, it really felt like, “Yes, this is a culture wars case, that is how it’s been read.”

It’s been understood, I think, by many liberals, many on the left as simply an attack on the regulatory state and on the right as payback against the Biden administration and the left’s speech intolerant social justice predilections. I just think that that is a huge mistake, even if, as we just said, it’s a bad complaint and it is itself clearly playing into these dynamics and hoping to get by pretty shoddy stuff because of these kinds of sympathies.

But just leaving that aside, jawboning and the specter of government using its informal pressure to push private actors, including major platforms, and I would also just say bookstores, newspapers, radio stations, television broadcasters, it’s not the social media platforms only, but also the social media platforms, to take down speech or to keep it up because the government likes it or doesn’t like it without the public having any way to know because all of this is happening through private emails or backdoor meetings or through sort of wink, wink, nudge, nudge agreements, and that the platforms go along with this because they’re afraid of what the government could do or because they hope that they will receive favorable treatment in the future.

All of that is very disturbing if we think that one of the central points of the 1st amendment is to create a marketplace of ideas that the government doesn’t get to control. For everyone who thinks that this is a ridiculous case, a silly case, a pure culture wars imagination, we are in an election season. We don’t know who’s going to be in control of the federal government this time and next year. I have to say, it worries me to imagine the Trump administration, which has been no friend to the social media platforms or to users or to free speech in general, having the ability to, without any constraints, put whatever pressure they want on platform, so long as they don’t violate whatever narrow lines we think, whoever thinks this is a silly case thinks the 1st Amendment imposes.

I just think that the claims here, the assertion that the government was putting heavy and persistent pressure on platforms to take down speech because those government officials didn’t like the speech, those are really serious allegations and we should have, and even if there’s all kinds of reasons to think these are not the best plaintiffs to be bringing these kinds of claims, what I worry about here is that the court is going to be so frustrated with the quality of the lawyering or with the clear culture wars overlay that it’s going to make very bad law.

It’s going to make law, it’s going to assert something about jawboning or about 1st Amendment standing or about state action, that is going to dramatically narrow the ability of litigants in future cases to bring much better claims against the government or claims at least that have stronger or factual, more rigorous fact-checking. It’s just going to wipe out a whole arena of potential 1st Amendment litigation because it thinks this was a bad case that had bad motivations. That really worries me because the government, as we know, has all kinds of informal power to pressure, to incentivize private actors to do or not do things.

Daphne Keller has written about how we already see that the platforms act in anticipatory obedience to the whims, the wishes of the government, not all the time but some of the time, and big business has a very strong self-interested reason to want to please the government that is setting the rules under which it makes profits. At both a theoretical level and practically, there’s good reason to think that this is a very serious 1st Amendment problem, and so I would hate people to think, “Oh, but this is a terrible case, so we don’t need to take it seriously.

Evelyn Douek:

Yeah, absolutely. This is something that we know both sides do this, in some ways that I guess is good that the argument in court really on Monday was really responding to the specific fact sets and all of the hypos that a lot of the liberal justices were throwing out were hypos about the government operating in the context of a pandemic and really concerned about some public health emergency, whether it was the pandemic or hypos about teens engaging in … Justice Jackson throughout this strange hypo of teens jumping out of windows of increasing heights and harming themselves and the government wanting the platforms to take this down. It was very much where she was coming from was this idea of a government acting in the public interest for some public health emergency, and for some reason the platforms are totally unaware and not acting and then the government’s just trying to get them to do the thing.

We know both sides do this. Just to throw out one example, we had one of the house hearings with CEOs. I can’t remember which House hearing it was, but it was about Trump’s team contacting Twitter to get them to take down Chrissy Teigen’s tweet about him that was critical. This is just something that is routinely done by government actors and to assume that, “Oh no, they only do it when there’s a totally legitimate motive that is in the public interest and not self-serving or in the government’s interest at all,” which seemed to be very much the assumption that was coming from certainly the liberal members of the court on Monday is problematic.

Genevieve Lakier:

But actually, not only the liberal members. This is one of the areas in the argument where there was cross-partisan agreement, but in the very worst way. I think both Kagan and Justice Kavanaugh made the point that, “Well, we know that the government uses this kind of pressure all the time, and so surely if it uses all the time, it cannot be unconstitutional when we are talking about national security.” I think there were also, there was conversation about newspaper editors. You call it the newspaper editor and you say, “I don’t like what you printed,” or, “I think it’d be a bad idea to print this.” This idea that because the government does it routinely, that’s fine, I found that very surprising, particularly I guess from the conservative members of the court who just a few years ago in Citizens United, there was this eloquent soliloquy about how we must mistrust government and we mustn’t presume that the government is always acting with good intentions. We must recognize it’s often acting for self-interested reasons.

But here, in this case, where there’s lots and lots of reasons, and as you say, like the Teigen example, lots of evidence to suggest that government actors use their informal powers and their ability to pressure all the time for petty self-interested, completely not public-regarding reasons. In this context they’re saying, “Oh no, but let’s presume that the government is acting fine because we know actors do it all the time.” “I did it,” Kavanaugh said. Kagan said, “I did it when I was in government service, and so it’s okay.” It really felt like one member of the federal government shoring up the power of another member of the federal government in a way that’s very uncomfortable in the 1st Amendment context.

Evelyn Douek:

Yeah, both Kavanaugh and Kagan definitely suggested, maybe not that they did it, but that they saw it when they were working in the government themselves, which of course, prompted Chief Justice Roberts to make the quip, which actually credit to him, this was a funny line to just say, “I just want to clarify, I’ve never coerced anyone,” which did get a big laugh. Meanwhile, Alito, this was one of the most frustrating moments of the hearing to me, was Alito was in some other universe where he said he was reading the factual allegations going, “Wow, I can’t believe all of this. We would never accept that if anyone did this to the press. What if they did this to the New York Times or the Wall Street Journal? Surely, we’d be really upset about this,” which first of all is obviously fantastical the idea that this never happens.

But second of all, he has such amnesia. It was just a couple of weeks ago in the argument about net choice where he was vehemently rejecting the idea that we should think about platforms in any way as the same as newspapers or the New York Times that have their own editorial discretion that they should be protected in their exercise of, and so it was one of the most frustrating moments, I think, to hear that hypocrisy or inconsistency.

Genevieve Lakier:

Yeah, and can I just add, just as a note to the historical record, just to say there is so much evidence that government officials use informal pressure. In fact, we could also call it jawboning against newspapers all the time. In particular, Nixon is famous for threatening to take down the Washington Post because he didn’t like the articles it was publishing against Nixon. We have memos from the post-Watergate era of government officials in the Nixon administration calling up the broadcast executives pretty much on a daily basis to try and get them to take down stuff and to threaten them with antitrust suits and other kinds of penalties if they didn’t comply.

The idea that this is novel to the social media platforms and we would never do it with the newspapers is just completely nonsensical, and I think, for me, reveals a failure to understand the scale of problem. It is not new, it is not just social media platforms. This is one of the powerful tools that the government has and does wield and as the Nixon example suggests, for all kinds of bad purposes as well as potentially good purposes, and yet most of the courts seemed not terribly alarmed about it.

Evelyn Douek:

Great. Okay. That’s really helpful as well because I guess one of the peculiarities of jawbonings or one of the features of it that makes it potentially particularly pernicious or difficult to think about is that it doesn’t happen in the public eye, that a lot of this stuff happens, and the whole point is that it’s done covertly or through backroom deals and private meetings and pressure outside the public eye. Sometimes it’s done using the bully pulpit, but as the allegations were in this case and just in general, we may not find out about it until much later through the release of memos or some reporting that it comes out much later.

The whole point of this is that it’s covert and we don’t know about it, and that makes it quite difficult to litigate, and so I guess, this gets to this, let’s start with the preliminary issue that the government started with and one of the reasons why these cases can be difficult to bring, and there haven’t been many of them despite this idea that there’s been, this is the first Supreme Court case on jawboning. How long, when was Bantam Books, Genevieve? What year was it?

Genevieve Lakier:

Oh goodness, ’65?

Evelyn Douek:

Something like that. Sorry, I didn’t mean to put you on the spot and call you on it, but decades, right, decades. There aren’t very many cases about this despite the fact that it’s probably quite pervasive or we know is quite pervasive. That’s because it’s unseen and can be difficult to litigate, and this brings us to the notion or the idea of standing, which is where the government came out the gate and was arguing that no one in this case had standing to sue on these allegations because there was a problem of traceability and redressability about the idea that there was no way to point to a specific government action that had caused a particular injury to particular plaintiffs.

I guess, just wanting to unpack that a little bit, but again, this is one of those moments where it was frustrating to see the political reversals here, because it was the conservatives, in particular Alito, talking about wanting to have quite a broad notion of standing in these cases and to get these litigants into court and to just air these really troubling issues. A lot of the liberal justices who are saying, “I don’t know, we should be very careful about having too broad an notion of standing. Can we really trace any particular injury to any particular fact set here?”, which is like totally topsy-turvy land.

Genevieve Lakier:

Oh, totally. Okay. Just to correct the record, because I feel like especially on this discussion, we should be very factually assiduous. Bantam Books is ’63, so it’s been 60 years since the court has decided a jawboning case, so it is well overdue. This is also why this is a big deal. We don’t get these cases every day, and so it would be a shame for it to be decided poorly. But on the standing issue, yes, it was incredible topsy-turvy land. The 1st Amendment standing has traditionally been more expansive than other parts of the constitution, because we think these kinds of free speech values are transcendent. But I think also because correctly enough, the court has recognized in the past, let’s be clear, that people are very easily chilled, that threats or government injuries can shut you up in all kinds of ways that are hard to perceive, and so we want to allow people to get into court. We don’t want to have too high a standard, because otherwise, we can just chill in all kinds of ways that we don’t expect.

But the court recently has been taking a much more restrictive view of 1st Amendment standing, and the person who has been doing the most along those lines is Justice Alito. He wrote the opinion in this case, Clapper V. Amnesty International, which was understood at the time as this terribly conservative opinion that was keeping all these litigants out of court, in that case, amnesty, by saying, “You don’t get standing if your injuries, your claimed injuries from the government are too speculative if you cannot tie it completely enough to an actual thing that the government is doing against you.” At the time, I felt this very much, it was the sense that the conservatives just want to shut the courtroom door and the liberals want to open it up, because they really care about liberty and free speech and equality and all those good things.

To get into the arguments yesterday and have Alito be defending broad standing rules and people like Justice Kagan suggesting a narrow rule is a, amazing and b, disheartening, because I think these jawboning cases are an excellent example of why we want to have broad standing rules and 1st Amendment cases to begin with. There’s all these kinds of features of these cases that should make us worry that it’s going to be hard in any event to get into court.

One thing is that the people who are being affected by jawboning, because this is being mediated, routed through a third party, in many, many cases will not know. They won’t have full access to the information. In all those cases, as you suggested, where it’s secret or it’s behind closed doors, the platform or the television company or the newspaper is going to know what happened, the government official is going to know what happened, but they don’t have an incentive to talk, because they’re in it together, and once you’ve been bullied into shutting up, you’re not really going to want to fess up to the whole world that this is what happened. You want to be seen as a responsible member of the press or the medium.

It’s going to be the individual litigant who’s going to lack a lot of the information about what happened to them, who’s going to be trying to get into court. If you have a standing rule that says, “You need to know everything that happened, you need to know what they said and how they said it, and you need to be able to directly trace this government action to the decision to suppress your speech. Unless you can show that you don’t get into court.” Of course, the only way you’re going to know any of that is if you get into court and you can get the court to order discovery, so that it’s going to force the platform or the television station or whoever it is to open up the books, so you can find out what happened.

A narrow standing rule, this is often described as a procedural hurdle, a jurisdictional hurdle, it’s separate from the merits of the case. But in jawboning cases, because of these features, it’s going to often make it impossible to figure out if there actually was a constitutional violation to begin with. This is something in other contexts, but involving similar kinds of considerations the liberals have in the past recognized. I think what is going on is that there is such mistrust of both state AGs and these kinds of politically motivated litigants, and then also frankly, the courts and the conservative appointed judges that now there is this desire on many on the left to construe standing narrowly, and then you see the flip flop, the people on the right conservative jurists and scholars want to expand standing.

But I’m a 1st Amendment person and I still think it is better. I think it is still better to, given the very obvious structural problems with jawboning, to allow litigants to get more easily into court. Even if sometimes, you’re going to have bad cases like this case, where you can at least then fight about it, say the court got it wrong, talk about the facts, write excellent amicus briefs that Stanford did. All of this is adding information to the conversation about what’s the government’s doing, what the platform’s doing, what’s right and what’s wrong. If you have a rigid standing rule, none of that ever gets into the record at all.

Evelyn Douek:

Yeah. I think in some ways, this case both perfectly demonstrates why we should have discovery and broad standing, because we learned so much through this process about what the relationship between platforms and the government. These emails from people in the White House that were pretty aggressive and a number of the briefs suggested possibly cross the constitutional line. These were briefs from progressive organizations that were generally in favor of the administration here and not wanting to close down all communication between the platforms and the government, nonetheless saying, there were certain emails from certain, a couple of emails from particular people within the White House that were really aggressive and about particular pieces of content that might have crossed the constitutional line, and we wouldn’t have known about any of those had we not got to discovery. But it also, obviously, clearly illustrates the perils of that in this particular moment, where we have these 20,000 pages of factual record getting filtered through this partisan lens and these partisan courts.

This is one of those cases that was filed in a particular district of Judge-dropping district that got assigned to a particular judge who was always going to find in the most favorable terms to the conservative states that brought this litigation, and so the distrust that you were talking about that there is of the courts is also perfectly illustrated in here too, and so it’s hard to know how to think about that in big picture terms.

Genevieve Lakier:

I guess, in an ideal universe, it provides an opportunity for the Supreme Court. Court intervenes. There’ve been a kind of-

Evelyn Douek:

Good. The Supreme Court, the non-partisan Supreme Court that’s definitely going to clean all of this up.

Genevieve Lakier:

I guess, what was interesting here is that it was by no means unanimous among the Conservative Bloc that they were in favor of the 5th Circuit. It wasn’t that the Supreme Court was doing the same thing that the 5th Circuit and the district court in Texas had done, or in Louisiana had done. It seemed to me more careful with the facts, a little bit uncomfortable with what had happened, and so it does provide an opportunity, particularly for a court that wants to shore up its legitimacy, to swoop in and say, “Look, this is the correct test, but this is what you did wrong. Let’s try this again better next time.” But of course, yes, that’s an ideal world. I’m skeptical that that is in fact what is going to happen.

Evelyn Douek:

Yeah. The last thing I’ll say on this, I think, is that this idea of needing very tight traceability between a particular government action and a particular outcome or content moderation decision seems especially ridiculous in the context of content moderation and social media platforms that are operating at scale. Maybe that makes more sense when you are talking about the press and you’re talking about government actors calling up the New York Times and saying, “Hey, don’t run this story because people are going to die. It’s revealing the location of our troops,” or something along those lines. That’s one situation.

But here, when you have these government officials, the allegation is, and whether it be the Biden administration now or the Trump administration, God save us, in a couple of years, forcing the platforms to change their rules at a higher level and forcing them to, whether it be adopt a particular COVID misinformation rule or change their rules on hate speech to be more permissive or something along those lines, the traceability is going to be hard. It’s happening at a systemic level, it’s happening at scale. If the platform is being forced to, and I will say, there’s no strong evidence that that’s the case here, but just in theory, if that is what’s happening, that kind of tight link is going to be hard to show.

Genevieve Lakier:

Yeah, and there didn’t seem to be a lot of recognition of that in the arguments. I thought that there was a way in which the arguments were curiously devoid of careful attention, and maybe this is because there were so many factual problems, the court was doing so much correcting and disputing in the arguments that it didn’t have time to give us a positive theory of what’s going on and how we should think about it.

It didn’t seem like there were many members of the court who were sensitive to the dynamics of the structural dynamics, the questions of scale, this very core question that 1st Amendment scholars who work in this area have made very apparent, which is this problem of intermediary liability or the structural weakness of speech intermediaries like platforms because they don’t have skin and game, that they’re going to be not very vigorous in their defense of their user speech rights except in unusual circumstances. Very little of that made it into the arguments, so what I would think of as the core positive case for a tough 1st Amendment jawboning rule, that seemed to be largely absent.

Evelyn Douek:

Okay, great. Let’s switch then from talking a lot about the facts to talking about the law and the legal tests here. A lot of this debate has centered around the line between coercion and persuasion. When reporters were calling me about this, they were all asking me, having diligently read some briefs, how do we work out the line between coercion and persuasion? How do we tell when it’s just the government trying to persuade the platform to do a good thing or when they’re coercing the platform to do something and that’s a bad line. Genevieve, where does that distinction come from? Why should we care about that distinction? Is that the only distinction that we should care about? What did you hear yesterday in oral arguments about that?

Genevieve Lakier:

Okay, several things. That distinction comes from Bantam Books and in the cases that have been applying Bantam Books. That comes from the 60-year-old president, the only other jawboning case the court has ever decided, in which the court trying to help the government figure out a rule that allows it to still communicate informally with private speech intermediaries, but not to use too much power that it effectively creates what the Bantam court majority called an informal system of censorship said, “Well, it’s okay to persuade to say, in my opinion, I think the speech is bad,” or to provide accurate information about the legal risks and liabilities the speaker or the speech intermediary will face if they go forward, so to say, “On our best reading the law, this violates the obscenity statute. It’s up to you to make your decision, but I just want to give you information.” The court said that that is persuasion, that is just using reason and information to try and help inform the decision-making of speech intermediaries.

But if you are coercing, and in that case Brennan, he’s the language of involuntariness, if given the context and the facts, a reasonable listener would understand the government to be saying, “You have no choice but to do this or else,” and that or else can be implicit as well as explicit. We’re going to use sanctions of some kind, the threat of prosecution, unfavorable treatment down the line, visits by local police officers, something. It’s unclear a little bit from Bantam Books how broad this range of activities is, but definitely the threat of being held into court for weak reasons is one of the sanctions that is on the table. That’s going to be coercion. If the purpose of the government’s action and the way it’s received is to get you to suppress the speech without, in fact, using the formal methods, the court says that’s coercion.

Now, the thing about Bantam Books, it’s decided at a time when the court’s very realist. The court is saying, “We’re going to look through the forms.” This is why I think it’s hard to answer the reporter’s questions. The court does not say, “Well, if you say X, Y and Z, that’s coercion. But if you say P, S and R, that’s not coercion.” It says, “You have to look at the context and circumstances, you have to look at what the speaker is intending and what an audience would likely to receive.” It is sometimes hard to discern the line between these things, but the thing that I guess I would emphasize is that there is a theoretical principle for why are we deciding something is coercion and something is persuasion. It’s not the semantic content of the speech, but it’s, is the government trying to evade the 1st Amendment essentially?

Is it trying to put pressure on a private actor, that it knows that private actor is going to or thinks it’s likely the private actor is going to respond by just taking down the speech or putting up the speech because it’s too much of a hassle to fight. The government is taking advantage of this because it also isn’t really planning on using the court systems to enforce its will. This is all intended to be a workaround around the former process.

If that’s what the government’s doing, Banter books makes clear that that is unconstitutional. The core problem with jawboning is the evasion of the constitution’s rules and constraints, putting pressure on a private actor so that they do something rather than availing themselves with legal rights, that is jawboning, that is coercion, and it can look different in different circumstances, but I think the court, the arguments got a little bit muddled, and I think, courts often get confused because they lose sight of this is the core thing, this is the evil we’re trying to identify.

Evelyn Douek:

And the thing that raises, which also I try and underline when I’m talking to reporters, and actually I was really happy to hear raised a number of times in oral argument, was the picture that Banter books kind of sets up is this intermediary that’s fighting back against the government, and then the government just is coming in and trying to push them to do something that they don’t really want to do, but maybe they don’t have enough skin in the game. They don’t really care about a particular piece of content, so they’ll just let it go and comply even if they didn’t really want to. But that’s not the only situation I think where we should be concerned about government pressure on social media platforms or any intermediary. There are ways in which a cooperative arrangement or a willing arrangement between a platform and a government might very well threaten free speech values that that might be something that we should be concerned about.

Now, that doesn’t fit so neatly, I think, conceptually in the way we think about private actors and their autonomy and the way that we’ve been talking about this in terms of the net choice cases. The way that I find it easiest to think about this maybe to make the threats of this real is, think about the Indian government or another government that we talk about on this podcast a number of times, where you have these government actors who are bringing these platforms to heel and then they become readily compliant, anticipatorily compliant, and want to please the government in order to be able to keep operating. That could very well threaten free speech values and it could be a situation where the government, because if what you’re concerned about is the government using informal means to evade the protections of the 1st Amendment or whatever constitution it’s and censor speech that they constitutionally should not be allowed to, that can happen whether or not the platform is willing or not. That line between coercion versus persuasion doesn’t really throw that up.

This is one of those situations where it was like that meme, the worst guy has made a good point a number of times during oral argument because it was, like Justice Thomas was making this argument a number of times in a way that I was quite sympathetic to, the idea that it can be willing coordination that is also problematic. Justice Barrett, I think was also bringing this up a number of times and the idea of joint action also being a problem. Alito also brought this up a number of times where it was the platforms and the government saying, “We’re partners in this,” or, “Let’s be partners in this,” as opposed to an adversarial relationship.

Genevieve Lakier:

Yeah. Talk about the worst person in the room making the argument. I think the 5th Circuit opinion in this case has all kinds of problems as we’ve talked about before, and I think is clear after hearing the arguments that there’s lots and lots of problems with the 5th Circuit opinion. But I think one of the things it was trying to get to is it was trying to push beyond the Bantam Books frame to use this other framework from this case called Bloom V. Uretsky, which has always before then been understood as a very narrow rule, narrower than Bantam Books, a state action rule, to interpret it broadly, to take account of cases in which the government provides a rule of decision and the platform’s like, “Okay, we’ll adopt the policy that you give us because one might think, you think that it’s easier, it’s going to get you in good favor with the government. If you don’t, it’ll be too difficult.”

All the same kinds of considerations that we have on the table in jawboning cases, but it’s not really jawboning because isn’t, it’s not this idea of pressure or threat, coercive threat placed upon a private speech platform, but it still raises all the same problems of constitutional evasion, creating an informal system of regulation that is never routed through the courts, that the courts never see, and therefore is subject to rules that are not consistent with the 1st Amendment values.

I do think that there is a problem. So many people in this case said, we have to follow Bantam Books. This is a Bantam Books case, this is about persuasion versus coercion, this is about threats, that’s all it’s about. In some ways, that is in large measure how it was argued that most of the instances, not all, but most of the instances, there is some finding that it’s coercion that were threatening, that there’s a what if, and this is I think the most familiar. We’re used to thinking about jawboning in these terms. But what some of the complaint is getting at and what some of the 5th Circuit was doing was trying to take account of these what are known often as joint action cases.

I really don’t like that terminology, that we’ve got these two separate buckets and they’re completely separate. There’s the jawboning cases and there’s joint action. I think they’re both constitutional evasion cases that look slightly different and that it can be dangerous if we think that they are entirely different specters of constitutional injury. Again, I do worry about what we’re going to get if the court is going to lose sight of this core insight.

Evelyn Douek:

Right, and again, it’s one of these things that means that this case that is a product of the culture wars might in a rule that doesn’t take account of these broader dynamics. There is nothing in particular in this case, I don’t think on the factual record as I’ve seen it, that suggests such a close relationship that we should be worried. There’s plenty of evidence that the platforms routinely denied government requests to take content down. They were not working as trying to always accede to the government’s demands or wishes or whims in any way, that’s not what the record suggests.

But this was a situation where the responses or the breakdown on the court did seem pretty partisan and weren’t thinking about these broader dynamics, and again, the potential future applications or different contexts where this might occur and how to think about that more broadly. I will say, I think this is a place where I was disappointed in the lawyer for the plaintiffs and the lawyer for the states here, because when he was getting pushed on, wouldn’t it be good for the government to be able to say this to the platform? Isn’t it a great thing that the government can tell platforms about this public health emergency or this really bad content that’s on their platform? Which, by the way, it is. That is a really important thing, and I think it would be really, really bad if we had some rule that said governments can never talk to platforms. That’s just not going to be a workable rule or a sensible rule. But the lawyer always responded to those kinds of questions being like, “Well, it may be a good thing, but unfortunately, the 1st Amendment just says you can’t.”

Genevieve Lakier:

Same text as the 1st Amendment.

Evelyn Douek:

Right, yeah. It flows naturally from the plain text of the 1st Amendment, which famously answers all problems, that very verbose and specific language. Instead, the way, far be it for me to give an experienced litigator some advice, but I guess, I would’ve really hoped that at that point there was more explanation of how that power can be abused. Like yes, it may be good, but we need to be aware of the reason why we have a 1st Amendment and not just the First Amendment says this, but the reason why the 1st Amendment says that or has been interpreted to mean that, which is that if you give the government power to do this or you turn your blind eye to it because in some cases it works out well for you, inevitably, a government actor that you don’t like is going to use that same power to silence speech that you do like and that you need to be aware of the potential for abuse.

Genevieve Lakier:

Yeah. But doing that, what you’re suggesting, which is trying to talk about how it can be used and how it can be abused and where the line is between appropriate government action and abusive or unconstitutional government action, I just think that’s hard. That’s hard intellectual work, and there’s so much going on in this case, this somewhat narrower case. Question, for example, about when joint action is too joint or when it’s not joint enough to violate the Constitution, no one was focused on, because there were a million other questions being teed up and there’s a lot of fighting about facts, and this is difficult. I was thinking as you were speaking, where would I draw the line?

It seems clear. I agree with you that the facts that the plaintiff alleged here do not. There are these facts. I think the strongest example of joint action here was the CDC set of instances where the platforms come to the CDC during the COVID pandemic to ask for advice, the latest advice about what’s good health information, what’s health misinformation. They’re going to put out some of the CDC information, they’re going to use this to inform their rules, but they’re acting voluntarily. They come to the platforms and to the CDC and using the CDC’s information to guide their policies.

That is not what, I think, we would think of as constitutional evasion. But what is then? The things that trouble me more are, if you have say a trusted flag system where you give the government priority and there’s evidence that the platform is taking down almost everything that the government flags, for example, that gets much closer because then what it looks like is it looks like the platform or whoever the speech intermediary is, has handed over decision-making authority in effect to a government official, and they’re no longer deciding themselves, “Oh yeah, we agree or we think that this is inappropriate. We’re just looking to the government for advice.” They’re actually just giving the government the power to do what under the 1st Amendment the government is not supposed to do.

But figuring out, I know that there are lots of people who like the trusted flag programs, and at what point does it get, is it 90%? Is it a hundred percent? Could the government just be very good at identifying those instances in which the speakers violate the rules? It raises all of these questions that are difficult to answer. I suppose your comments made me think we should confess how complicated and difficult it can be, and maybe one reason why the court seems to be staying far away from these questions, because they are hard. There’s just no way that this case is going to answer all the questions raised by jawboning.

Evelyn Douek:

Oh, absolutely. Trusted Flagger is a great example of a program that can be extremely beneficial. Of course, government officials on the ground are going to have the best knowledge to flag. This is a post that says the incorrect polling time, and so I’m going to flag that to a platform that content moderates millions of posts a day and is not going to be able to see every single post, and so has a beneficial use. But yes, it would seem problematic if every time the government flags an individual piece of content, it gets taken down. But of course, that could just be because the government’s really respectful of its constitutional authority and it doesn’t want to overstep the line, and so it’s only flagging stuff that it’s really sure about, and it’s just being a good government actor and how do we think about that?

Then certainly, on the other side, the CDC example is a great one. Any rule that says that a platform can’t talk to the CDC in the middle of a global pandemic to know what is the latest information about COVID and what is an effective treatment or what should we be doing about social distancing or what is the CDC guidelines guidance for people at the moment about what they should be doing? Those are the kinds, that can’t be the rule. It has to be the rule that we want expert advice in those moments, but how do we draw the line?

Genevieve Lakier:

I guess this goes back to distrust of courts. I think the people who think the 1st Amendment just doesn’t belong here, we should not make this constitutional matter. In most cases, they just do not trust courts to be able to make the distinction that you were just suggesting they need to make, because it’s too fine-grained and too difficult. I’m not sure. A huge amount of the civil rights law, workplace, anti-discrimination and labor and employment law requires us figuring out when something is an appropriate exercise of the business necessities and when it isn’t. You could think the same as here too. Same kinds of burden shifting frameworks and evidentiary standards and discovery rules, we could just import it all, there’s lots of tools available. But given the culture wars context and given the highly politicized state of the judiciary and given all this evidence that jawboning claims are being used in highly political ways, not necessarily in an entirely good faith ways, I understand why people are nervous.

Evelyn Douek:

Yeah, and as we started with, this has to be a contextual analysis. There’s all of these different kinds of relationships and different kinds of communications and trying to decide them all at once seems crazy, although the fear is that that’s exactly what the court’s going to do, because there are sufficient people on the court that are reacting to this as a product of the culture wars rather than a complex and nuanced legal issue. At the same time, if you only get one bite at this every 60 years, I don’t know whether that makes it better or worse to try and think about it big picture and do a lot at once, or whether it makes it worse because we’re going to be stuck with a bad rule for 60 years. I don’t know.

One thing I want to talk about from oral argument briefly is Justice Jackson in particular kept pushing this line that, well, you would always have this escape hatch for strict scrutiny. There’s a 1st Amendment test for a lot of when the government is restricting speech. If it doesn’t fall within any of the other exceptions or is a content-based restriction on speech, it can’t be valid unless I can satisfy strict scrutiny, but if the government can satisfy strict scrutiny, which is to say that there’s a compelling interest and it’s narrowly tailored to meeting that interest, that can be constitutionally permissible. Justice Jackson was putting this forward to both sides during oral argument to suggest, “Well, isn’t that what was happening here? That this was a situation where there was a compelling interest in the middle of a pandemic and that this was really important for the government to be able to do this.” She’s really seemed to be thinking about this as a strict scrutiny case, and that hasn’t come up before, and I want to get your thoughts on why and what do you think of that?

Genevieve Lakier:

I really didn’t like it. I found it incredibly frustrating because I think it reveals a misunderstanding of what’s at stake here. Just two things. One is, up until now, in jawboning cases, courts do not apply strict scrutiny. If they find that there is unconstitutional coercion, then you’re out of luck. It’s unconstitutional, it’s a per se situation. One way to think about that is that it’s a prior restraint. This is how the court in Bantam Books understood it, that your prior restraining speech and prior restraints are heavily disfavored except in the most extraordinary circumstances, and so most of the time you just lose.

But I think maybe a better way of understanding it is that the whole point of jawboning cases, the reason why we recognize this as potentially a 1st Amendment violation is because we are so worried that the government is going to use its informal powers to create an informal system of regulation that doesn’t look at all like the formal system of regulation that isn’t speech protective because there’s no courts to second guess. There’s no public to check what the government’s doing. That it’s viewpoint discriminatory and it’s repressive, and it’s a blunt in course in all of these ways that we find really worrying.

This is why, by the way, in Bantam Books, Brendan says this kind of prior restraint is way worse than the formal prior restraint. This is even a worse violation of the 1st Amendment because it is unchecked by judicial constraint and judicial authority. To think that this crude, blunt, unjudicial way of creating regulation is amenable to the very nuanced strict scrutiny analysis seems to me to misunderstand what’s happening. This is not government regulators thinking, “Okay, so what are the constitution rules and how can I stay within them? Okay, this is permissible, but this is not permissible.” I think saying we’re going to apply strict scrutiny and in some cases after the fact, we’re going to say it is okay to have purposely tried to evade the constitution because we think it was worthy enough is to say essentially constitutional evasion is sometimes okay.

If the government thinks that there is a public health emergency and it needs to act, then it can pass a law. When it passes the law, it then can defend it on strict scrutiny at grounds. If it has a compelling reason and there’s no other way to do it, then it will win, and so that’s what it should do. But I see no justification for saying, “We’re going to apply the same standard to informal action that is purposely intended to avoid the kind of public reaction and publicity and transparency that formal process entails and does not in ordinary cases get us to the courts.” I think there’s a terrible misunderstanding of the true harm of jawboning.

Evelyn Douek:

One last question, which is that last week, at the end of last week, the court released two cases or really one decision about state action in the context of social media, potentially in anticipation of oral argument on Monday, they didn’t want to maybe let slip what they had been thinking about state action in the context of social media, and this was in seemingly quite different context, which is the capacity for government actors themselves to block people who, when they have a government page or potentially a personal page and they’re conducting government business on that page, is it constitutional or a violation of the 1st Amendment for them to block their constituents who are interacting with them on social media? The court in Lindke V. Freed said yes, that there are certain cases in which that will be a violation of the 1st Amendment rights of these constituents. I’m just curious to hear your thoughts on what that might portend for this case, the Murphy V. Missouri case, if anything.

Genevieve Lakier:

Well, at the time I thought Lindke was bad news for jawboning claims because Lindke articulates a relatively narrow view of when there’s going to be, when the 1st Amendment is going to apply, when there’s going to be state action in these blocking cases, because it says you have to have actual authority to be operating the page or doing whatever it is that you’re doing on the page as a government official. Otherwise, we’re going to treat this as your private page and then you actually, so you have to have the theoretical authority, and then you have to actually be exercising that authority when you’re blocking the person or demoting the person or whatever it is for the 1st amendment to apply.

But of course, the jawboning cases are often about officials extending beyond their authority, doing things that are not formally authorized, and since there has in the lower courts been a lot of fighting about how do we think about state action in these cases, I thought, well, if the court and the timing suggests, as you said, that this was handed down with an eye to jawboning. It seemed to be prefiguring a kind of, “Well, there’s no state action here,” argument as a means of dismissing the case or narrowing the jawboning rule. But that was absent from the arguments. Much of the arguments was about standing and about coercion versus persuasion and state action played a relatively minor role in the arguments. I guess, honestly, I don’t know what to think. Lindke could be used to say, yes, we have a very narrow state action rule, so jawboning apply in most cases. But it seemed like the court was thinking of these as separate cases.

Evelyn Douek:

Okay, well, we avoided the worst case scenario, but it’s very, very hard to tell exactly where we’re going to come out on this, and so we will just have to wait and see. But for now, this has been your Moderated Content weekly update. Show notes and transcripts are available at law.stanford.edu/moderatedcontent. Make a good friend an even better friend by telling them about the show and leave us a rating or a review wherever you listen to help more people find us. As always, this episode is produced by the wonderful Brian Pelletier. Special thanks to Justin Fu and Rob Hoffman.