SCOTUS Hears Troubling Jawboning Cases Involving Big Tech and Government
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Today, the Supreme Court heard argument concerning jawboning – government pressuring private entities like social media companies to suppress politically disfavored speech. CEI expert Wayne Crews analyzes the implications for regulatory policy.
Two cases heard by the Supreme Court today concern ‘jawboning’, the raised-eyebrows and verbal arm-twist pressures that can be brought against private firms that fail to do the bidding of powerful government officials wielding the ability to punish. Either case has wide implications, not only for free speech and the First Amendment but for de-platforming of people espousing unapproved viewpoints.
Murthy v. Missouri involves Biden White House pressures on social media companies to censor what it regarded as mis-, dis-, and mal-information on topics like COVID and the 2020 election, with implications for other disputes like climate change, equity and LGBTQ policies. National Rifle Association of America v. Vullo involves pressures brought against banks and insurance companies by a New York regulator to disassociate from the NRA. The government actions under review in these cases comprise a major category of ‘regulatory dark matter’– regulating and controlling without actually writing rules.
Ultimately, Congress must pass legislation addressing the phenomenon of sub-regulatory guidance and regulatory dark matter like the Guidance Out of Darkness (GOOD) Act, oversight hearings, and scrutiny of future jawboning actions of White House officials, DHS, and the like.
Secondly, but overarching all, congressional leadership and the courts must explicitly protect the right to dissent and never again contribute to jawboning against it.
Related analysis:
Mapping Washington’s Lawlessness: A Preliminary Inventory of Regulatory Dark Matter
Ten Thousand Commandments (2022, Biden “transformation” edition)