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The Supreme Court will hear two cases on Monday, March 18, that are often referred to as “jawboning” cases — that is, cases where the government tried to pressure private companies into taking certain actions, but without actually using any of its coercive power.
On the surface, the two cases have many similarities. Both involve claims that the First Amendment imposes strict limits on the government’s ability to cajole, hector, or otherwise try to persuade private companies to act in a particular way. But these similarities are only an inch deep.
One case, known as National Rifle Association v. Vullo, involves a fairly obvious violation of the First Amendment.
In National Rifle Association (NRA), New York’s top financial regulator brought a legitimate enforcement action against three insurance companies that did business with the NRA, and these companies agreed to pay a total of $13 million in fines. But then, while this completely benign enforcement action was underway, the same regulator issued a “guidance” to all insurers who do business in the state, warning them to “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations.”
This guidance was not permitted by the Constitution. A law enforcement agency cannot pressure companies to stop doing business with a political advocacy group that it disagrees with while it is also in the process of collecting millions of dollars in fines from some of those companies. Even though the financial regulator’s “guidance” did not explicitly threaten that more enforcement actions would follow if insurers kept doing lawful business with the NRA, a threat was implied by the regulator’s previous, multimillion-dollar action against insurers associated with the NRA.
The second case, meanwhile, is more fraught. In Murthy v. Missouri, the United States Court of Appeals for the Fifth Circuit — a far-right court dominated by MAGA judges — issued a vague and sweeping injunction that effectively forbids the federal government from communicating with social media companies about harmful content online.
Federal officials routinely ask social media companies to pull down content that encourages criminal activity, that endangers public health, or that potentially threatens national security. This includes content that seeks to recruit people into terrorist groups such as ISIS, content produced by “Russian troll farms” and other foreign adversaries, and disinformation about vaccinations and Covid-19.
Unlike the NRA case, the Fifth Circuit’s opinion in Murthy identified no examples of a government official taking coercive action against a social media company, nor did it identify any plausible threat to take such action. The right-wing court did, however, identify some cases where White House officials used unnecessarily strident language in an attempt to pressure social media companies to remove content.
It then latched onto these few unwise statements as an excuse to issue a sweeping court order that practically forbids the government from speaking to social media companies at all. The Supreme Court temporarily blocked this order last October over the dissents of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.
Under current law, the government may ask any private company to take virtually any action. It may use firm, or even harsh, language when it does so. It may condemn a private company’s actions in public and in private. And it may do so even if the company the government is trying to pressure is a media company that engages in First Amendment-protected speech.
As any reporter will tell you, government officials try to shape what kind of reporting appears in the newspaper all the time. Most major government offices have entire communications teams that exist for the purpose of trying to persuade, pressure, or cajole journalists into reporting some stories while avoiding others.
But the government may not use the power of the state to coerce a media outlet into pulling down speech. Nor may it use its coercive power to pressure companies to cease doing business with an advocacy group that the government finds repugnant. Persuasion is allowed. Coercion is not.
Now, however, the task of policing this line between persuasion and coercion falls to a Supreme Court that does not always feel bound by existing law and that is often sympathetic to the Republican Party’s cultural grievances. So there is no guarantee that this Supreme Court will draw the line between permissible and impermissible pressure in a sensible place.
And both the NRA and the Murthy cases potentially endanger the government’s ability to take entirely legitimate actions to protect public safety and public health.
In the NRA case, a former top official’s recklessness endangers a perfectly legitimate effort to keep people from being murdered
The NRA case arises out of two separate actions by former New York State Department of Financial Services (DFS) superintendent Maria Vullo, one of which raises no serious constitutional concerns.
The legitimate action began in 2017, when DFS opened an investigation into Carry Guard, an NRA-endorsed insurance program that, according to a federal appeals court, “provided liability defense coverage for criminal proceedings resulting from firearm use even where the insured acted with criminal intent.”
Carry Guard offered to pay both the civil and criminal legal fees (up to $1 million for a civil case and up to $150,000 for a criminal case) of customers who shot someone else, allegedly in self-defense. The NRA advertised Carry Guard to its members as a way to enjoy peace of mind if they shot another human. One pitch to NRA members said that “you should never be forced to choose between defending your life ... and putting yourself and your family in financial ruin.”
New York law generally does not permit insurance products that “insure a person for that person’s intentional criminal acts,” and so DFS acted entirely within its lawful mandate when it brought an enforcement action against three companies that underwrote or administered Carry Guard or similar programs. Eventually, these companies entered into consent decrees where they agreed to stop providing this sort of insurance, and where they also agreed to pay over $13 million in fines.
While these entirely legitimate enforcement actions were ongoing, however, a teenager opened fire at a high school in Parkland, Florida, killing 17 people. In response to this shooting, then-New York Gov. Andrew Cuomo’s administration stepped up its criticism of the NRA, and Vullo played a major part in the administration's attempt to rein in the powerful gun rights group.
And so, in April of 2018, DFS issued a “guidance,” signed by Vullo, warning insurers of the “risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations.” That guidance told insurance companies that DFS “encourages regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety.”
Had this guidance been issued in a vacuum, it might not violate the Constitution. Again, the government may attempt to persuade a private company to stop doing business with the NRA.
But a law enforcement officer cannot seek millions of dollars in fines from three insurance companies that did business with a political advocacy group — even if they collected those fines for entirely legitimate reasons — and then immediately turn around and warn every other insurance company in the state that bad things could happen to them if they also do business with that same advocacy group. Read in context, it’s hard to understand Vullo’s guidance as anything other than an implicit threat.
One highly relevant case is Bantam Books v. Sullivan (1963), where the Supreme Court acknowledged that “people do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around.”
Bantam Books involved the Orwellianly named “Rhode Island Commission to Encourage Morality in Youth,” a state body that identified books and other publications it deemed “objectionable for sale, distribution or display to youths under 18 years of age.” This commission then sent letters to booksellers seeking their “cooperation” in removing such books and informing those sellers of the commission's “duty to recommend to the Attorney General prosecution of purveyors of obscenity.”
At least one book distributor reported that he was visited by a police officer shortly after receiving a notice from the commission, and the officer asked the distributor what steps he had taken to comply with the notice.
In any event, neither the commission nor the police officer explicitly stated “remove these books or you will be arrested,” but the implicit threat was quite clear. And Bantam Books held that this kind of coercion is not allowed under the First Amendment.
Vullo’s actions weren’t quite as egregious as the commission’s actions in Bantam Books — at least she didn’t send an armed state official to New York insurers to ask them what they’d done to cut ties with the NRA — but they are close enough to the facts of Bantam Books that they cannot be allowed.
Vullo, after all, was herself a law enforcement officer (though, admittedly, one whose jurisdiction was limited to enforcing certain financial laws), and she was actively trying to collect millions of dollars in fines from three insurers that did business with the NRA when she told every other insurer in the state to stop doing business with the NRA!
Worse, because of Vullo’s foolish decision to issue her anti-NRA “guidance,” she may have endangered a perfectly legitimate enforcement action against the NRA’s murder insurance. The Supreme Court’s GOP-appointed supermajority is extremely sympathetic to claims brought by gun rights groups. There’s no telling how far they might reach when they are handed a case that involves a genuine violation of the NRA’s constitutional rights.
More broadly, Democrats simply need to be more careful than Vullo was when they exercise government authority. They have to assume that every action they take will be reviewed by a judiciary that hates progressive policies and wants to see Democrats fail.
And that brings us to the Murthy case.
The Murthy case shows just how much harm partisan judges can impose on the US government if they are given an excuse to do so
The Murthy case is as frustrating as the NRA case, but for a completely different reason. Unlike NRA, Murthy does not involve the kind of clear-cut violation of the First Amendment that should compel the courts to intervene.
At most, Murthy seems to involve a few isolated incidents where government officials — most likely because they were under extraordinary pressure to vaccinate hundreds of millions of Americans against Covid-19 as fast as possible — lost their tempers with corporate officials who shared the same broad goals as the Biden administration.
As the Justice Department explains in its Murthy brief, the federal government routinely speaks with social media companies about their editorial decisions. The Department of Homeland Security often briefs social media companies on how to “‘recognize and react to violent extremist content’ posted by terrorist groups”; the FBI often notifies social media providers that one of their users is promoting terrorism; the Cybersecurity and Infrastructure Security Agency (CISA) flags social media content that contains election-related disinformation, “such as false statements about the time, place, and manner of elections”; the White House sometimes asks social media companies to remove accounts that falsely impersonate a member of the president’s family; and government officials also ask social media companies to remove harmful medical advice that could injure people who follow it.
And so long as the government merely asks the platforms to remove content, rather than trying to threaten or coerce them into doing so, government officials may lawfully make such requests.
Social media platforms, moreover, are often eager participants in these conversations because they share the government’s desire to, say, suppress terrorism or protect people from quack medical advice. During the pandemic, for example, these platforms “regularly reached out” to the CDC “to ensure that the information the social media companies chose to promote on their platforms remained consistent with the latest CDC guidance.”
Companies like Facebook and YouTube, in other words, decided on their own that they did not want to publish content that could lead to more Covid-related deaths. And they often proactively reached out to the government for advice on what sort of content should be removed.
There are quite a few cases, however, where social media companies disagreed with the government’s opinion that a particular social media post should be taken down. And the plaintiffs in the Murthy case — two red states, plus a handful of individuals who are upset that some of their content was removed by social media companies — highlight a few examples of when these disagreements escalated into forceful rhetoric.
The plaintiffs’ brief, for example, points to a communication between a White House official and Twitter where the official asked Twitter to “get moving on the process for having” an anti-vaccine tweet “removed ASAP.” And they flag a few examples where government officials grew frustrated with the social media companies’ slow answers and responded with a commanding tone (“I want an answer on what happened here and I want it today”).
The plaintiffs also point to some isolated statements, made by White House officials who were responding to questions from reporters, where the Biden administration endorsed policy changes that social media companies would likely find objectionable, such as a May 2021 statement by the White House press secretary that President Biden supports antitrust reforms.
Some of these statements were probably unwise. In a world where a hostile, highly partisan judiciary looms over every Democratic administration, Biden administration officials would be smart not to speak to employees at media companies as if they were their boss lest some judge latch onto these statements as an excuse to charge the administration with constitutionally impermissible coercion.
But the Fifth Circuit’s Murthy opinion, which spends about 14 pages describing incidents where various federal officials asked social media companies to remove content, does not identify a single example of any official taking coercive action against a platform that refused such a request. Nor does it identify anything vaguely resembling the implicit threat in the NRA case.
If anything, the Fifth Circuit’s own evidence suggests that the platforms felt perfectly free to ignore the government’s requests whenever they wanted to. Among other things, the Fifth Circuit admitted that, about half the time, the platforms rejected the FBI’s requests to pull down content and nothing happened to the platforms as a result.
And yet, despite its inability to identify any actual coercion by government officials, the Fifth Circuit invented a new rule that would allow it to shut down more benign communications between these officials and social media companies.
And then it issued a sweeping injunction that is simultaneously too vague for Biden administration officials to figure out how to comply with it and so broad that it prohibits communications that clearly do not violate the First Amendment.
If this injunction, which has been temporarily blocked by the Supreme Court, were to go into effect, that would mean that no one in the FBI would know what it is allowed to do if it discovers that the Russian government is flooding social media with content intended to incite an insurrection in the United States. And no one in the CDC would know if they are allowed to respond to a request from Facebook asking if the drug ivermectin cures Covid (it does not).
So what did the Fifth Circuit’s opinion actually say?
Briefly, the Fifth Circuit invented a new legal standard that, it claims, should govern cases where the government asks a media company to voluntarily remove content. Under the Fifth Circuit’s approach, huge swaths of the federal government’s communications with social media companies are illegal because the government “entangled themselves in the platforms’ decision-making processes.”
The Fifth Circuit never defines the word “entangled” beyond using other, equally vague adjectives to describe what the government is not allowed to do. The opinion, for example, faults the government for having “consistent and consequential” communications with social media platforms.
Then, having articulated this imprecise legal rule, the Fifth Circuit issued a broad injunction prohibiting the Biden administration from ... well, it’s not at all clear what the Biden administration can’t do. The federal government seems to have been ordered not to have “consistent and consequential” communications with social media companies — whatever the hell that means.
This is, to say the least, not normal behavior from a federal court. Typically, when a court enjoins any party from taking any action, it defines the scope of that injunction clearly enough that it’s possible to figure out what the enjoined party is not allowed to do. But the Fifth Circuit’s injunction is so ill-defined that no one in the government can possibly figure out whether they violate it if they speak to a social media company. So government officials are likely to cut off contact altogether, lest they be held in contempt of court.
In any event, if the Supreme Court wants to follow existing law — always an uncertain proposition with this Court — there is an easy way for the justices to toss out the Fifth Circuit’s decision without blessing some of the more imprudent communications between the social media platforms and government officials.
Any plaintiff who brings a federal lawsuit must show that they’ve been injured in some way by the defendant they are suing — a requirement known as “standing.” As the Supreme Court said in Lujan v. Defenders of Wildlife (1992), moreover, “there must be a causal connection between the injury and the conduct complained of.”
So a plaintiff alleging that a White House official was too demanding in one of their conversations with a social media platform cannot seek relief in federal court unless they can show that this conversation actually caused a social media company to pull down a specific piece of content posted by that plaintiff.
And even if one of the Murthy plaintiffs can make such a demonstration, which is unlikely, the Supreme Court’s precedents impose an even higher barrier on plaintiffs asking a federal court to issue an injunction (a court order forbidding the defendant from acting in a particular way). The controlling case is City of Los Angeles v. Lyons (1983), which held that a plaintiff who has been injured in the past by the government cannot seek an injunction banning that activity unless the plaintiff “was likely to suffer future injury” similar to what they experienced in the past.
The Murthy plaintiffs, in other words, must show 1) that a government official had an unconstitutional conversation with a social media platform, 2) that this conversation caused that platform to remove some of the plaintiffs’ content that the platform wouldn’t have removed anyway, and 3) that a similarly unconstitutional conversation is likely to happen in the future that would lead to the same outcome for the same plaintiff.
That’s an extraordinary burden. And it is exceedingly unlikely that any plaintiff can meet it in this case.
A majority of the justices already disagreed with the Fifth Circuit once, when the Court temporarily blocked the Fifth Circuit’s decision last October. So the Biden administration has good reason to be optimistic that Murthy won’t end with another sweeping court order that seems to even forbid the FBI from warning Twitter that some of its users are using the platform to coordinate criminal activity.
Nevertheless, Democrats in government should take the same lesson from Murthy that they need to take from NRA. No one even tangentially related to the Murthy case did anything approaching the egregious constitutional violation that occurred in NRA, but that didn’t stop Republicans on the Fifth Circuit from combing through the Biden administration’s communications with social media companies, looking for a reason to issue a broad and unworkable injunction.
One of the Fifth Circuit’s many errors is it seemed to assume that government actions have no value — that the public’s interest in not having terrorists find recruits on YouTube pales before some anti-vaxxer’s interest in being able to falsely tweet that Covid vaccines are unsafe. Democratic officials need to understand that judges who hold this worldview are pervasive throughout the judiciary and that they will eagerly seize upon any mistake made by a public official to sabotage whole swaths of the government.
