Against Jawboning

By Derek E. Bambauer. Full text here.

Despite the trend towards strong protection of speech in U.S. Internet regulation, federal and state governments still seek to regulate online content. They do so increasingly through informal enforcement measures, such as threats, at the edge of or outside their authority—a practice this Article calls “jawboning.” The Article argues that jawboning is both pervasive and normatively problematic. It uses a set of case studies to illustrate the practice’s prevalence. Next, it explores why Internet intermediaries are structurally vulnerable to jawboning. It then offers a taxonomy of government pressures based on varying levels of compulsion and specifications of authority. To assess jawboning’s legitimacy, the Article employs two methodologies, one grounded in constitutional structure and norms, and the other driven by process-based governance theory. It finds the practice troubling on both accounts. To remediate, this Article considers four interventions: implementing limits through law, imposing reputational consequences, encouraging transparency, and labeling jawboning as normatively illegitimate. In closing, it extends the jawboning analysis to other fundamental constraints on government action, including the Second Amendment. This Article concludes that the legitimacy of informal regulatory efforts should vary based on the extent to which deeper structural limits constrain the government’s regulatory power.