The New First Amendment Fight Is Not About Censorship Alone
There is an old-fashioned word for a very modern problem: jawboning. It means government officials leaning on private companies to do what the government itself may not lawfully command. In the age of social media, the word has moved from the margins of legal scholarship into the center of American politics.
The issue is not whether the government may speak. Of course it may. Federal agencies can warn Americans about false claims during a pandemic, foreign propaganda during an election, or scams after a hurricane. A government that could not correct dangerous errors would be strangely helpless.
The harder question is what happens when official correction becomes official pressure. A phone call from a White House aide is not the same thing as a phone call from a private citizen. A public health agency asking a platform to review a post is not necessarily censorship. But when the request comes wrapped in threats about regulation, antitrust action, liability, or public punishment, the request begins to resemble a command wearing civilian clothes.
What the Supreme Court Has Said So Far
The Supreme Court has recently addressed this territory, but it has not fully settled it. In Murthy v. Missouri, decided in 2024, the Court rejected a challenge brought by states and individual social media users against federal officials over contacts with platforms about Covid-19 and election-related misinformation. The majority held that the plaintiffs had not shown the kind of direct, traceable injury needed for standing. In plain English, the Court said they had not proved enough of a link between specific government pressure and specific platform decisions affecting them.
That ruling mattered, but it was not a sweeping endorsement of the government conduct at issue. The Court did not say federal officials have a blank check to prod platforms into suppressing disfavored speech. It said the plaintiffs had not cleared the procedural threshold required to keep the case moving.
Another 2024 decision, National Rifle Association v. Vullo, pointed in the other direction. There, the Court unanimously allowed the NRA to pursue claims that a New York financial regulator had violated the First Amendment by allegedly pressuring banks and insurers to cut ties with the group. The principle was direct and important: government officials may criticize private actors, but they may not use the threat of state power to punish or suppress protected expression.
These two cases now sit beside each other like boundary stones. Murthy says courts require a clear record connecting government action to private censorship. Vullo says coercion cannot be laundered through private intermediaries. The space between them is where much of the next decade of speech litigation will likely unfold.
Why Conservatives Are Paying Attention
Conservatives have particular reason to worry about informal pressure because it is difficult to see and harder to challenge. A statute can be read. A regulation can be contested. A subpoena leaves a paper trail. But jawboning often happens through emails, meetings, calls, public hints, and private nudges. It is government by raised eyebrow.
This matters because many of the most sensitive speech disputes in recent years have taken place on platforms that are private in ownership but public in cultural importance. Facebook, YouTube, X, TikTok, and other platforms are not the town square in a constitutional sense. They are private companies with their own rights. Yet for many Americans, they function as the practical arena where politics, religion, news, and civic argument now occur.
That creates a temptation for every administration, not just one party. Officials who cannot ban a claim outright may try to persuade a platform that the claim is harmful, destabilizing, foreign-influenced, or dangerous. Sometimes that description will be true. Sometimes it will be premature. Sometimes it will be a way of treating dissent as a public health hazard.
Here the conservative instinct should be institutional rather than merely partisan. The point is not that Republicans are always victims and Democrats always censors. The point is that executive power has a natural appetite. It expands most easily when its ambitions are described as emergencies.
The Government Has Legitimate Duties
A serious argument against jawboning must also admit what is legitimate. The federal government may alert companies to foreign influence operations. It may share information about cyberattacks, terrorist recruitment, fraud, child exploitation, and coordinated inauthentic activity. Law enforcement and intelligence agencies cannot be forbidden from communicating with the private sector simply because those communications may touch speech.
The trouble begins when information-sharing becomes pressure-sharing. A warning that says, in effect, here is what we know, review it under your rules, is different from a warning that says, take this down or we will remember your refusal when Congress, regulators, or prosecutors come calling.
That distinction is not always easy to draw. But constitutional government is full of difficult distinctions. The fact that a boundary requires judgment is not an argument for having no boundary at all.
A Policy Path Forward
Congress does not need to wait for the courts to answer every question. A sensible reform agenda would begin with transparency and process.
- Require written records of federal requests to platforms involving content moderation, except in narrow emergency circumstances.
- Publish regular transparency reports listing agencies involved, categories of requests, and whether platforms acted on them, while protecting legitimate law enforcement needs.
- Ban explicit or implied threats tying content moderation decisions to regulatory punishment, contracting decisions, antitrust scrutiny, or other government benefits and burdens.
- Create internal review procedures before agencies contact platforms about lawful political, religious, or journalistic speech.
- Protect emergency communications for genuine threats such as terrorism, cyberattacks, and exploitation, while requiring after-the-fact documentation.
Such reforms would not prevent the government from speaking. They would help ensure that when it speaks, it does so as a participant in public life rather than as a veiled sovereign.
The Deeper Cultural Problem
There is also a deeper problem than law can fully solve. A country that trusts bureaucracies more than citizens will always find reasons to manage speech for the citizens' own good. A country that trusts citizens more than bureaucracies will accept the disorder that comes with liberty.
This is where the First Amendment rests on a moral claim, not merely a procedural one. Human beings are not children of the state. They are responsible moral agents, capable of error, persuasion, correction, and repentance. Free speech assumes that truth does not need a federal minder to survive every argument.
Social media has made that faith harder to maintain. Online life rewards speed, anger, tribal loyalty, and conspiracy. But the cure for a degraded public square cannot be a shadow system in which officials quietly decide which errors may be heard and which must be buried. That cure would only replace public folly with official folly, and add secrecy besides.
The next round of jawboning fights will likely turn on technical questions: standing, causation, discovery, agency authority, and the difference between persuasion and coercion. Those details matter. But beneath them lies a simpler question: May the government do indirectly what the Constitution forbids it to do directly?
The conservative answer should be no. And the institutional answer, if we still take constitutional government seriously, should be the same.
