Doctrinal Disarray: Amicus Briefs in Murthy v. Missouri and NRA v. Vullo Reveal How Divided Legal Commentators Are on Jawboning Questions

Mayze Teitler is a legal fellow at the Knight First Amendment Institute.

The Supreme Court is poised to weigh in on a vital question: when and how may the government communicate with intermediaries consistent with the First Amendment? The Court has not squarely addressed the constitutionality of this phenomenon – commonly referred to as “jawboning” – since 1963. But this term, it’s taken up two jawboning cases, each of which present a hodgepodge of factual scenarios:

• In one, Murthy v. Missouri, the Court will consider whether the Biden Administration – while communicating with social media platforms and the public regarding content moderation related to COVID, election misinformation, and other topics – violated the First Amendment.
  
• In the other, NRA v. Vullo, it will consider whether actions taken by New York’s then-Superintendent of the Department of Financial Services violated the First Amendment rights of the National Rifle Association. The NRA alleged that Superintendent Vullo promised leniency to insurers during a DFS investigation if they cut ties with gun rights groups, and made a series of statements in the aftermath of the 2018 mass shooting at Parkland high school intended to coerce banks and insurance companies to sever their business relationships with the organization. The NRA saw these actions as part of a coercive campaign targeting its speech.

As of March 8, the briefing in both these cases is complete. But if the Justices – or those of us following the cases from the cheap seats – were hoping for consensus on the proper analytical framework from the parties and their amici, they’ll be disappointed. The questions posed in Murthy and Vullo have divided free speech commentators, giving the Justices a fractious landscape of proposed legal tests and allegedly unconstitutional communications to navigate. In their briefs, some amici argued that the Court should embrace the longstanding coercion/persuasion framework, which allows the government to attempt to persuade or advise intermediaries (sometimes citing the need for the government to speak on its own behalf), but forbids it from coercing them. Others argued that jawboning cases present a state action question – where the court should determine whether government involvement in the intermediaries’ decisions transformed their conduct into action by the state, such that government can be held responsible for their choices.

The answers to these questions matter because they will affect both the future of free speech online and the viability of some types of regulatory action by the government. Disaffected plaintiffs are hungry for the opportunity to bring jawboning cases; individuals with followings large (presidential candidate Robert F. Kennedy, Jr.) and small (a Murthy amicus former school board member litigating her claim that government officials jawboned a Facebook group administrator to take down her post) are arguing that the government is illicitly limiting the reach of their content on social media. These suits may be the precursor to a deluge of First Amendment litigation targeted at government communications and regulatory behavior – depending on the ultimate rule crafted by the Supreme Court.

This piece explores several strands of First Amendment doctrine discussed in amicus briefs filed in Murthy v. Missouri and National Rifle Association v. Vullo. They fall roughly into four categories:

(1) the Court should distinguish between persuasion and coercion under its existing precedent;

(2) state action does not provide the correct approach to jawboning questions;

(3) both the persuasion/coercion distinction and state action law apply; and

(4) the cases actually present other First Amendment-related issues, including expansive arguments that would limit the government’s ability even to persuade intermediaries.

I. The Court Should Distinguish Between Persuasion and Coercion under its Existing Precedent

Many amici argued that the Court should approach jawboning cases by distinguishing between permissible persuasion and impermissible coercion. This test, derived from the 1963 Supreme Court opinion in Bantam Books v. Sullivan, recognizes the importance of preserving a role for the government to communicate – including with speech intermediaries – as a participant in the marketplace of ideas. At the same time, it acknowledges that speakers and intermediaries have an interest in communicating free from government interference. For most of the amici who supported applying the persuasion/coercion test, this balance best preserved the government’s role without empowering it to distort the marketplace of ideas.

But the justifications that led amici to endorse the persuasion/coercion distinction were not uniform. Some appealed to the public interest in hearing from a government empowered to participate in public discourse, but not enabled to quash dissent. The Knight First Amendment Institute (where I work, and whose brief I contributed to) urged the court to apply Bantam as a totality of the circumstances test to distinguish between persuasion and coercion. The Institute described the factors identified by the Second and Ninth Circuit – (1) word choice and tone, (2) whether the speech was perceived as a threat, (3) the existence of regulatory authority, and (4) whether the speech referenced adverse consequences – as a nonexclusive part of that totality. The Institute saw the persuasion/coercion distinction as serving three constitutional values: The interest of intermediaries and users in communicating free from government coercion; the public interest in having and hearing from a government empowered to attempt to shape public opinion through persuasion; and the interest of the public in preventing the government from doing an end-run around the Constitution by acting informally or surreptitiously. According to the Institute, preserving each of these values is necessary to maintaining a healthy speech environment.

Others thought that the Court should rely on Bantam primarily to preserve beneficial government speech. An association of local government attorneys argued that speech on matters of public concern – including attempting to persuade and influence private actors – lies at the heart of governance. At the same time, it acknowledged that government actors infringe the First Amendment under Bantam when they seek to use state power to stifle protected speech. To balance these concerns, amicus argued that the Court should interpret Bantam as an objective, reasonable person standard, and that it should clarify that government speech is not coercive under Bantam simply because the speaker possesses or lawfully exercises regulatory authority. Amicus proposed these nuances to preserve the government’s ability to critique and influence public debate, arguing that if regulatory authority rendered speech coercive, actors that “have a dual role of expressing viewpoints and engaging in legitimate regulation of conduct” would be “hamstrung in their ability to do their jobs.”

But amici were divided even on this component of Bantam. A group of First Amendment scholars, who argued that Bantam provided the correct standard for jawboning cases, thought that Superintendent Vullo’s actions in NRA v. Vullo were more coercive than those at issue in Bantam, in part because she had direct regulatory authority over the intermediary. They viewed the case as “easier” than others in the Bantam line “because Vullo used her direct regulatory authority” over an intermediary. In earlier cases, defendants “threatened prosecution by other agencies” and “lacked direct regulatory control altogether,” while “by contrast, Vullo threatened to bring civil enforcement proceedings against [the intermediary] herself.” While many amici agreed that it was appropriate to understand these cases through the persuasion/coercion paradigm, they did not agree on the meaning or application of that test.

II. State Action Does Not Provide the Correct Approach to Jawboning Questions

Some amici also argued that relying on the state action doctrine would be inappropriate in jawboning cases because it might interfere with the rights or functions of intermediaries. The Fifth Circuit’s decision in Murthy v. Missouri relied in part on language from a Supreme Court decision called Blum v. Yaretsky. Blum held that the government can be liable for the actions of a private entity when it “exercised coercive power or . . . provided such significant encouragement that the choice in law must be deemed to be that of the state.” The Fifth Circuit saw this test as complementary to Bantam Books, with “significant encouragement” — which the Fifth Circuit describes as a close nexus between the parties such that the government is “responsible” for the challenged decision (satisfied either by entanglement in independent decision-making or direct involvement in carrying out the private party’s decision) — providing a separate route to First Amendment liability.

Some amici rejected the Fifth Circuit’s reasoning. Those amici focused primarily on concerns that it would expand state action doctrine too broadly and subject intermediaries to vexatious litigation simply because they communicated with the government. For instance, the Americans for Prosperity Foundation – a conservative advocacy group – argued that the state action doctrine should apply in only two scenarios: when a plaintiff seeks redress against a private defendant who might have acted with the state’s imprimatur, or when a plaintiff seeks to hold a state defendant liable for a private party’s action. The Foundation argued that in jawboning cases, the core question is whether the government’s challenged conduct violated the First Amendment, not whether another party’s conduct was attributable to the government. As such, the Foundation argued that it would be appropriate to rely on Bantam but not Blum.

The Knight Institute similarly cautioned against the application of the state action doctrine to jawboning cases, due to the threats that doing so would pose to editorial decision-making. By relying on Blum in jawboning cases, courts would open up the platforms to liability – meaning they could be subject to damages or required to repost content they would prefer not to publish – as a consequence of having been the victim of government coercion.

At least some platforms and third parties agreed. The trade association NetChoice, among others, argued that the Fifth Circuit’s reliance on Blum was surprising, given that the Supreme Court has never applied the standard in a jawboning case. It warned that, if the Court were to apply Blum in a jawboning case, it should make clear that “like the standard in Bantam Books, [Blum] requires some sort of compulsion by the government over the private party’s decision.” Amicus took that position, in part, because they were concerned about private intermediaries becoming liable for their communications with the government. It viewed impermissible coercion as a harm against the intermediaries’ own expressive rights, not a form of coordination between those intermediaries and the government.

III. Both the Persuasion/Coercion and State Action Tests Apply to Jawboning Cases

Many amici did not see Bantam and Blum as in tension with one another, but instead reasoned that they should be read as part of the same legal framework.

A number of these amici agreed with the Fifth Circuit’s approach to the question in Murthy, though they understood that decision differently. For instance, the Foundation for Individual Rights and Expression argued that informal censorship can occur either through coercion (when a plaintiff can satisfy the four-factor test derived from Bantam) or through significant encouragement (satisfied either through government entanglement in a private party’s decision-making or direct involvement in carrying out the decision, per Blum). Amicus saw both Bantam and Blum as routes to identify a close nexus between state actors and private decisions, such that the state actors would be responsible for them. It expressly disavowed the relevance of these tests when a private entity “becomes” a state actor in the conventional sense, where it would be appropriate to hold an intermediary liable. Amicus argued that under this hybrid Bantam/Blum test, it would be appropriate to uphold the Fifth Circuit’s decision.

In contrast, a brief by prominent conservative commentators argued that state action could be established under either significant encouragement as articulated in Blum and a Fourth Amendment case, Skinner, or coercion. Per amici’s reading, Skinner established a three-prong test for determining when significant encouragement occurred: (1) whether the government removed all legal barriers to action, (2) articulated its strong preference for the action, and (3) expressed its desire to “share the fruits” of the action. (Other amici made variations on this argument, including the Kennedy Plaintiffs, raising it in the alternative, and a group of conservative nonprofits spearheaded by Advancing American Freedom.) The conservative commentators argued that the facts in Murthy satisfy either route, meaning state action occurred and the decision should be upheld. The distinction between these two analyses is significant, because the commentators’ brief appears to leave room for liability against the platforms (though it doesn’t explicitly endorse such liability), while FIRE’s appears not to.

Some amici thought that Blum and Bantam should be read together even though they diverged from the Fifth Circuit’s approach. The Electronic Frontier Foundation and Center for Democracy and Technology argued that the Court should hold that Bantam Books and the state action doctrine “are simply the same analysis, with the same relevant factors and limitations applying to each.” Amici saw Blum’s coercion test as essentially coextensive with the Bantam test. Under this approach, “such significant encouragement” should be the equivalent of Bantam’s implied censorship, each seeking to determine whether the speech intermediary’s decision to censor should be legally attributable to the state. In amici’s view, the Court should clarify that the various factors that might be relevant to coercion apply to, and cabin, both analyses. This approach would limit the Fifth Circuit’s decision below, while still integrating both lines of cases.

Some government entities also thought that the cases were best read together. A group of states argued that the government may be held responsible only when it exerted such coercive power or significant encouragement that the choice must in law be deemed to be that of the state (the test from Blum), and that Bantam’s persuasion/coercion distinction is properly understood as an application of that broader principle. The United States, writing as amicus in Vullo, took the same approach. It wrote in a footnote that the “Court’s state-action precedents reflect the same distinction between persuasion and compulsion,” “the same fundamental principle . . . governs in both cases: The government may not use threats or inducements to compel private parties to suppress speech, but the government does not violate the First Amendment or transform private conduct into state action if it merely engages in speech of its own[.]” The government entities’ reading of the case law is arguably less protective of private speech than some of the other interpretations before the Court, and would offer governments fairly significant latitude in their dealings with private entities.

IV. These Cases Present Other First Amendment Issues: i.e. Everyone’s Wrong!

Finally, a coterie of amici looked beyond Bantam’s and Blum’s well-trod paths, raising other arguments. These briefs ranged in topic, some bringing factual issues to the Court’s attention and others focusing on additional legal issues the cases raise, like standing. Some made arguments that could shape the Court’s approach to the First Amendment questions raised by Vullo and Murthy.

Multiple amici suggested or implied that the Court should adopt a new test for government speech built on Justice Alito’s concurrence in Shurtleff v. City of Boston. Government speech doctrine is the area of First Amendment law that establishes the principle that, when the government is speaking on its own behalf, it need not remain viewpoint neutral. Instead, it can advocate for specific positions and express opinions. Government speech doctrine is related to the persuasion/coercion distinction, since “persuasion” would be a form of government speech, while “coercion” would not be. These amici relied on Alito’s concurrence in Shurtleff to develop new government speech tests. An amicus brief by gun-rights groups proposed a two-part test, asking:

(1) whether the speech in question is a purposeful communication of a government message by a person empowered to speak for the government; and

(2) whether the speech targets private actors for hostile treatment based on the views they express.

If the speech was not a purposeful communication on behalf of the government or if it targeted private actors based on their views, it was not government speech. (The gun-rights groups conceded that the government in Vullo likely satisfied the first part of the test.) Another amicus said that the real inquiry should be whether the government is speaking rather than regulating private expression. If the government’s utterances suggested it intended to regulate rather than to speak its own view, they no longer fell within the government speech doctrine. Either of these approaches would narrow the government’s authority to speak on matters of public concern. 

Others proposed tests that would broaden the scope of the First Amendment’s protections to encompass almost any government interference with individual expression. The New Civil Liberties Alliance (the group litigating Murthy) wrote an amicus brief in Vullo that proposed that the court “refocus on the text of the First Amendment,” which established an “abridging” standard, “as informed by both history and tradition” (paralleling a test applied in the Second Amendment context). This test would allow a plaintiff to prevail if they could demonstrate that their First Amendment rights were abridged by the government — a standard that would seemingly render government persuasion off-limits, too, at least if it succeeded in persuading an intermediary to suppress speech. Others would simply disallow the government from advocating for differential treatment of speakers on the basis of viewpoint or content. (E.g. the Claremont Institute’s Center for Constitutional Jurisprudence, the National Religious Broadcasters, and America’s Frontline Doctors.) As some government officials pointed out, such a rule – if interpreted broadly – could thwart the exercise of discretion traditionally treated as part and parcel with the authority to set enforcement priorities. It could make it very difficult for the government to set priorities for the administrative branch, which routinely offers nonbinding advice on technical issues – like regulatory infractions – that might affect advocacy groups, without opening itself up to First Amendment challenge.

Oral arguments in both cases, scheduled for Monday, March 18, will shed light on the Justices’ preferred approach to analyzing jawboning claims. Until the Court renders its decisions in Murthy and Vullo, both advocates and the Justices will have to navigate this First Amendment mishmash.