Newsweek September 6th, 2023
After major rulings on abortion and affirmative action, the Supreme Court doesn’t have anything quite so explosive on its docket for next term, which begins in a few weeks. As we turn from the phony war over judicial ethics to legal substance, social media regulation is about to take center stage.
The Justices will hear argument this fall in two cases that ask whether public officials violate the First Amendment when they block people on social media using accounts that issue communications on job-related matters. (The Second Circuit had previously ruled against President Donald Trump‘s blocking people on Twitter, but the Supreme Court vacated the decision and mooted the case when Trump left office.) And the Court will almost certainly grant petitions arising from a split in the lower courts over Florida and Texas laws that treat tech companies as common carriers, preventing them from engaging in viewpoint discrimination. But this summer, a new social media issue emerged that may well swamp these in public importance: jawboning.
Jawboning occurs when the government applies pressure to private companies to take certain actions. In the context of social media, elected and appointed officials increasingly demand that platforms refrain from publishing disfavored speech, or take steps to limit its spread. Sometimes they threaten tech companies with punitive legislation, antitrust investigations, and prosecution. But the pressure can also be more informal.
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