Governments around the world “jawbone” platforms by pressuring them to take down users’ speech. In the U.S., those pressures can be unconstitutional. The seminal Bantam Books case held that a state “Commission to Encourage Morality in Youth” violated the First Amendment by pressuring bookstores to remove allegedly obscene books from their shelves. More recently, the Fifth Circuit held in Missouri v. Biden that members of the Biden administration had exceeded constitutional bounds in urging platforms to remove misinformation about COVID-19.

State actors are not going to stop talking to platforms, though. We shouldn’t want them to stop. And interjecting courts to mediate every discussion and avoid any risk of prior restraint is not an option. Even Bantam Books itself made clear that state employees need not “renounce all informal contacts” with private speech distributors. The question is what constitutional guardrails should shape these important and unavoidable conversations.