Jawboning: When the State Enlists Social Media to Suppress Free Speech, the Lines Are Blurred
SCOTUS's Deference of Children's Health Defense vs. Meta Leaves Jawboning Option Open for US Government and Leaves the People Without Recourse When the Government is Wrong
In the digital age, the U.S. government no longer needs overt statutes or censorship boards to restrict speech. Instead, it uses a more insidious tool: jawboning — informal pressure exerted on private platforms to moderate, suppress, or algorithmically demote disfavored content. Often veiled as "advisory guidance," this technique has allowed federal actors to shape discourse while avoiding First Amendment scrutiny.
Landmark rulings like Bantam Books v. Sullivan (372 U.S. 58, 1963) and Murthy v. Missouri (5th Cir. 2023, SCOTUS 2024) expose the core constitutional tension: how far can the state go in influencing speech before it becomes de facto censorship? The answer remains disturbingly vague.
Historical Precedent: Bantam Books v. Sullivan
In Bantam Books, a Rhode Island commission created a list of "objectionable" books and distributed it to book vendors, warning that continued distribution could lead to legal trouble. Although the list carried no formal legal authority, the Supreme Court held that it exerted sufficient pressure to constitute unconstitutional state censorship:
"Although the Commission is limited to informal sanctions... it deliberately set about to achieve the suppression of publications deemed 'objectionable,' and succeeded in its aim."
This ruling established the principle that informal state pressure can constitute a constitutional violation, even in the absence of formal law or prosecutorial action.
These cases clarify that government actors cannot use direct or indirect means to pressure or compel entities to suppress speech without violating the First Amendment. State-sponsored media, public universities, or in-kind subsidized intermediaries such as tech platforms receiving preferential access or regulation-free zones, are also bound by these rules when acting under color of law.
Modern Parallel: Murthy v. Missouri
Decades later, the principles in Bantam Books resurfaced in the digital realm. In Murthy v. Missouri, plaintiffs alleged that agencies like the White House, Surgeon General, CDC, FBI, and CISA colluded with social media companies to censor speech concerning COVID-19, vaccine safety, and election integrity.
In 2023, the Fifth Circuit ruled that:
The White House and Surgeon General engaged in coercion.
The CDC and CISA provided significant encouragement.
The FBI engaged in coercion as well.
A sweeping injunction was issued, blocking federal agencies from coercing or significantly encouraging platforms to suppress lawful speech. However, in Murthy v. Missouri, 600 U.S. 23-411 (2024), the Supreme Court stayed the injunction, finding plaintiffs lacked standing. Critically, it did not rule on the merits, leaving unresolved whether government pressure short of formal compulsion violates the First Amendment.
Justice Barrett wrote:
“To establish standing, the plaintiffs must demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek.”
And further:
“The plaintiffs do not seek to enjoin the platforms… they seek to enjoin government agencies. The one-step-removed, anticipatory nature… presents… injury that results from the independent action of some third party not before the court.”
State-Sponsored Media and In-Kind Censorship Incentives
The Supreme Court has not directly ruled on the status of state-sponsored or government-aligned media with respect to indirect censorship. However, Rosenberger and AOSI provide a clear signal: in-kind sponsorship, including immunity from antitrust enforcement, favorable regulatory treatment, and contract preference, can create unconstitutional conditions when used to suppress viewpoint diversity.
Platforms such as Facebook have enjoyed tacit protection from regulatory risk and scrutiny. One need only recall the 2018 Zuckerberg hearings before Congress, where lawmakers hinted at the possibility of antitrust action, FTC scrutiny, and federal oversight if content moderation was not tightened. While no formal sanctions followed, the implicit threat was unmistakable. Had Facebook not cooperated, it faced the risk of punitive legislative and regulatory retribution.
That absence of formal punishment constitutes a form of in-kind sponsorship: silence in exchange for compliance. This perverse incentive structure transforms social media companies into state-sponsored silencers without a single act of Congress.
At the October 23, 2019, House Financial Services Committee hearing:
Rep. Ocasio-Cortez: “So you won’t take down lies, or you will take down lies? I think that's a pretty simple yes or no.”
Zuckerberg: “In most cases, in a democracy, I believe that people should be able to see for themselves what politicians … are saying and judge their character for themselves.”
And at the 2020 Antitrust Subcommittee hearing:
Rep. Nadler: “You purchased Instagram to neutralize a competitive threat. Why shouldn't Instagram now be broken off into a separate company?”
Zuckerberg: “I think the FTC … reviewed this and unanimously voted at the time not to challenge the acquisition.”
Zuckerberg also later testified that antitrust enforcement represented an “existential threat” to the company. These hearings, while not directly linked to content moderation, strongly conveyed a subtext: non-cooperation with policymakers could provoke institutional consequences.
The Persuasion-Coercion Divide: Blurred and Dangerous
The ambiguity between acceptable "government speech" and impermissible censorship-by-proxy is being weaponized. The current boundary is undefined and exploited. Below are mechanisms used to sanitize speech while evading judicial oversight:
Legal Analysis and Case Synthesis
The doctrine of unconstitutional conditions holds that the government may not condition receipt of a benefit on the surrender of a constitutional right. In cases like Agency for Int'l Development v. Alliance for Open Society, 570 U.S. 205 (2013), SCOTUS reaffirmed this doctrine. If federal grants are tied to speech moderation practices, this doctrine is violated.
Moreover, Rosenberger v. University of Virginia, 515 U.S. 819 (1995), holds that when the state funds speech, it must do so in a viewpoint-neutral way. If Facebook, YouTube, or academic centers accept federal funds and then suppress disfavored speech under federal direction, they risk becoming state actors.
When these threads are combined with Murthy and Bantam, the emerging picture is one of constructive coercion, executed through diffuse but coordinated executive pressure.
Judge Collins’s dissent in CHD v. Meta is worth quoting in full:
“The cumulative effect of statements, coordination, and timing could support a plausible allegation of joint activity… a ‘partnership’ with government may convert private moderation into state action.”
State action isn’t established solely by regulatory threats, but the convergence of those threats plus compliance may convert private action into state action de facto.
Toward Doctrinal Clarity and Legislative Remedy
Given the Supreme Court's hesitance to rule on the merits in Murthy, and the door it leaves open for the executive and legislative branch for continued use of informal suppression channels, several reforms are urgently needed:
Statutory Mandates of Transparency
All communications between federal agencies and social media platforms regarding content moderation must be logged, published quarterly, and reviewable under FOIA.
Judicially Enforceable Standards
A strict scrutiny test must be applied whenever the government seeks to influence content moderation based on viewpoint.
Courts must adopt a constructive coercion doctrine, whereby patterns or threats of pressure or systemic influence count as state action.
Private Right of Action
Individuals and organizations whose speech was suppressed following government contact with platforms should have standing to sue both federal actors and complicit intermediaries.
Platform Immunity Review
Section 230 protections should be reevaluated for platforms acting under substantial government direction. When public-private censorship collusion is proven, immunity should be pierced.
Conclusion: SCOTUS Keeps Us in the Gray Zone
The First Amendment was never designed to tolerate government suppression via whisper campaigns or algorithmic coordination. By leaving the lines blurred, courts enable a censorship-by-proxy regime that can silences dissent, chill public debate, and convert neutral platforms into extensions of executive or legislative will.
Unless those lines are brightened — and enforced — the machinery of digital speech will remain captured. This is not a hypothetical threat. It is, as Bantam, Murthy, Rosenberger, and the very emails in discovery reveal, a present and ongoing injury to the American system of open discourse.
The Duty to Speak When Silence Is Convenient
By not shutting down Jawboned censorship, SCOTUS encourages captured government. Why? Because corporations that have the means to do so will continue to see the power of the government as the best way to manipulate and control the public’s perception of the safety of their drugs. And their vaccines. And their food additives. It’s all connected.
There is no republic—no free people—without the liberty to speak what is unpopular, unwelcome, or inconvenient to power. Government, by its nature, accumulates force, justifies secrecy, and surrounds itself with compliant intermediaries—media, academia, and industry—that would rather manufacture consensus than test it. When truth becomes a liability and dissent is algorithmically buried, it is not merely speech that is threatened—it is the sovereignty of the people themselves.
The duty to speak does not dissolve when the state becomes subtle. It intensifies. Citizens must speak not despite the threat of censorship, but because of it. Especially when facts are drowned in the warm bath of narrative, especially when those in power partner with corporations to silence the wrong kind of right, the citizen’s obligation is not passivity—it is defiance.
COVID-19 exposed this fault line. Bureaucracies clung to models that failed. Agencies silenced doctors who questioned lockdowns. Social platforms suppressed studies that contradicted official optimism. And yet truth did not disappear. It resurfaced because people refused to stop speaking.
No government—regardless of how digitized, corporatized, or algorithmically assisted—can be trusted to police the boundaries of discourse. That authority belongs to the people. And it is by speaking, especially when forbidden, that they remind their government: You do not own the truth. You do not own the voice of the people.
To remain silent in the face of suppression is to consent to it. And history has never been kind to those who mistook the temporary comfort of compliance for the enduring strength of liberty.
If the courts will not resolve it, Congress must act. But what we cannot allow is the silent normalization of government-directed silence.
CHD v. Meta
District Court (June 29, 2021):
Dismissed the complaint—with prejudice—on the grounds that CHD failed to allege state action as required for constitutional claims. It also dismissed all statutory claims (Lanham, RICO)
Ninth Circuit (August 9, 2024):
Majority (Judge Miller):
Held Meta is a private actor and CHD did not allege an enforceable government policy or coercion compelling Meta to censor.
Found that CHD’s evidence—e.g., references to CDC or “partnerships”—failed to show joint action or coercion.
Concluded CHD, therefore, lacked standing under the state-action doctrine
Partial Dissent (Judge Collins):
Argued that when viewed as a whole—including communications, timing, and coordination—CHD plausibly pleaded joint action and should be allowed to proceed on injunctive relief
Supreme Court (June 30, 2025):
Denied certiorari, letting the Ninth Circuit’s ruling stand.
