Jawboning: Examining the relationship between government officials and private companies

WASHINGTON (TND) — The suggestions from top government officials to private media companies are now under the microscope.

Last week, the Supreme Court heard arguments in a case that could have widespread implications for free speech in the United States.

In Murthy v. Missouri, top officials with the Biden Administration are accused of breaking the law when they asked social media companies to remove posts about COVID-19, which they deemed misinformation. One such post, questioning the safety of the COVID-19 vaccines.

The nation's highest court is expected to answer whether or not the officials crossed the line. However, questions have existed for decades about how far the government can go. The perceived overreach is often referred to as "jawboning."

The term is defined in a 1970 New York Times article as "implied threats by the administration as a means of convincing business or labor to adopt certain attitudes or policies.

"You might threaten to cut off government contracts to steel companies if they continue to raise their prices. That was one approach that Kennedy took," Will Duffield with The CATO Institute said of Robert F. Kennedy.

It would add, Secretary McNamara informed me this morning, an estimated one billion dollars to the cost of our defenses, at a time when every dollar is needed for national security and other purposes," Kennedy said while in office.

From Kennedy to President Joe Biden and other administrations in between, the most common justification for intervening is for the good of the country. This includes the case before the Supreme Court when top health officials had concerns over whether the spread of online misinformation about vaccines could prevent people from getting them, and in turn, lead to more illness and death.

Another example is the administration notifying big tech companies when their platforms are being used by pedophiles, terrorists or other foreign adversaries. That practice is a public-private relationship that has existed for years.

“We’re spending so much of our effort trying to engage with social media technology companies because there is a very important role for them to play in terms of monitoring and in effect, policing their own platforms," FBI Director Christopher Wray said.

However, Duffield said in most cases, the actions amount to government bullying. His report on jawboning makes the case that even absent an explicit threat, "government can suppress disfavored speech by intermediaries, such as publishes or telephone companies, from carrying it."

"These demands supplant platforms’ private judgment as to what they want to carry or refrain from carrying with that of the government and that clearly violates the First Amendment," Duffield said.

Depending on how the Supreme Court rules, these grey areas of communication between the government and private companies could be cleared up in the coming months.