“Jawboning as Collaborative Governance,” by Daniel Browning

The article is here; the Abstract:

When the government regulates conduct, it does not always do so directly. Increasingly, the government regulates conduct indirectly—by pressur­ing some intermediary to do the direct regulatory work for it. This form of indirect regulation has raised considerable concern in the context of speech regulation. Scholars and activists have sounded alarm bells that this form of indirect speech regulation, typically referred to as “jawboning,” often violates the First Amendment because it allows the government to censor expression on the cheap. Indeed, during its 2024 term, the Supreme Court heard two different First Amendment jawboning cases. While one case, Murthy v. Missouri, was dismissed on standing grounds, the Court reaffirmed, in NRA v. Vullo, that coercive jawboning of protected expression violates the First Amendment.

Despite jawboning cases taking up a substantial portion of the Court’s docket during its 2024 term, little scholarly discussion about jawboning can be found. The scholarly discussion of jawboning that does exist tends to converge on a standard picture—that jawboning is an inherent threat to freedom of expression and that it is, therefore, necessarily normatively undesirable. Thus, while scholars have identified possible perils of jawboning, practically no attention has been paid to the promises.

This Article rejects the standard picture. In a nutshell, this Article argues that we ought to be more ambivalent about jawboning, or, in other words, that whether jawboning is normatively desirable turns on a fine-grained contextual analysis that’s glossed over by the standard picture.

But first, we must define “jawboning,” as there is little consensus in the literature about what it even means for the government to jawbone. After surveying various conflicting definitions of jawboning, Part I defines jawboning as a triadic relationship between the government, an intermediary, and some third party, where (a) government official(s) communicate with a private intermediary (b) in a way that pressures—but does not persuade—the intermediary to do something that (c) influences the third party’s conduct and where (d) the government official intends to target the third-party’s conduct by means of its pressure on the intermediary.

Building on the definitional work in Part I, Part II situates jawboning in relation to the broader governance literature. Part II argues that jawboning is a form of collaborative or “new” governance—a public/private regulatory partnership designed to achieve some public regulatory objective. Jawboning is a “third way” between direct government regulation and pure private ordering.

After articulating a functionalist framework for evaluating jawboning, Part III explores the conditions under which jawboning, as a form of collaborative governance, is and is not normatively desirable. From this discussion, we see that the normative case for or against jawboning turns on a variety of contextual factors about the regulatory environment that are glossed over by the standard picture.

Having laid the descriptive and normative foundations, Part IV turns to First Amendment jawboning doctrine. After identifying two significant deficiencies in existing First Amendment jawboning doctrine, I propose that courts should analyze several factors presently excluded from First Amendment jawboning analysis: (1) the government’s motive for jawboning; (2) the value of the targeted expression; and (3) the weakness of the intermediary and, relatedly, the intermediary’s independent incentives to regulate third-party speech.