EXECUTIVE SUMMARY Jawboning refers to government actors using informal threats or regulatory pressure to influence private speech, raising significant First Amendment concerns. The temporary, but very real, suspension of Jimmy Kimmel’s show following his remarks about Charlie Kirk’s assassination exemplifies how such pressure creates a chilling effect, effectively silencing speech without direct censorship. Landmark court cases like NRA v. Vullo and Murthy v. Missouri highlight legal boundaries and challenges in proving coercion. Addressing jawboning through executive orders, legislation, and vigilant civil society action is essential to protect free expression and prevent government overreach in shaping public discourse.
Understanding Jawboning in the Modern Era
Jawboning, government actors using informal threats or regulatory power to shape private speech, has captured national attention since Jimmy Kimmel’s suspension in the wake of Charlie Kirk’s assassination. The Kimmel episode reveals how easily government pressure can silence media voices, but it is merely the latest development in a series of jawboning controversies that have shaped American business, technology and public discourse.
The term “jawboning,” originally coined in economic contexts to describe government pressure on businesses through persuasion rather than regulation, has evolved into a critical First Amendment concern. Legal scholars recognize that while jawboning involves using speech to persuade someone to act, constitutional issues arise when government actors engage in this practice, creating concerns that what appears to be mere persuasion may actually constitute effective commanding.
Jimmy Kimmel: A Defining Moment in Jawboning
Jimmy Kimmel’s show was taken off the air after he criticized Donald Trump and the MAGA movement for their politicized response to Kirk’s murder. FCC Chairman Brendan Carr condemned Kimmel’s comments publicly and warned ABC that its broadcast license might be at risk. Facing mounting regulatory threats, ABC and major affiliates, including Nexstar and Sinclair, suspended Kimmel’s late-night program, an act widely seen by legal experts and free speech advocates as jawboning: the government’s indirect speech suppression through pressure on private broadcasters.
Legal experts emphasize the fine line between permissible government speech and unconstitutional coercion: Government officials are legally permitted to try to persuade a private actor, like ABC, to change speech, yet they cannot coerce the private actor. Public defenders of Kimmel argued that such governmental interference sets a dangerous precedent, signaling that officials can silence content they dislike without directly invoking censorship powers.
The Kimmel suspension illustrates how jawboning operates through implicit threats rather than explicit orders. The FCC’s warning about broadcast license reviews created what legal scholars call a “chilling effect;” the mere possibility of regulatory retaliation leads to self-censorship. This dynamic is particularly problematic because it allows government actors to achieve censorship outcomes while maintaining plausible deniability about their coercive intent.
Historical Context and Evolving Patterns
Kimmel’s suspension is just one recent example. Over the past decade, jawboning has become especially prominent in digital media and finance. During the COVID-19 pandemic, White House officials pressured social media platforms to remove vaccine misinformation, implying that regulatory protections under Section 230 might be withdrawn for companies failing to comply. These vague but forceful statements shifted platform moderation policies, raising new legal questions about governmental overreach and First Amendment rights.
The digital age has amplified jawboning’s potential impact because social media platforms serve as critical information gatekeepers for millions of Americans. When government officials pressure these platforms, the effects ripple through public discourse far more extensively than traditional media censorship. The scale and opacity of algorithmic content moderation systems make it particularly difficult to track when and how government pressure translates into speech restrictions.
Landmark Legal Precedents
National Rifle Association of America v. Vullo (2024): Establishing Clear Boundaries
In a major case, National Rifle Association of America v. Vullo, New York’s financial regulator signaled to banks and insurers that they should distance themselves from gun advocacy organizations, hinting that cooperation would result in more favorable regulatory oversight. The U.S. Supreme Court unanimously found this to be unlawful jawboning; the state could not indirectly accomplish what direct censorship would otherwise violate.
The Vullo decision established several critical principles for identifying unlawful jawboning. Government actors cannot use regulatory authority to achieve speech restrictions they lack direct power to impose, while subtle hints about regulatory consequences can constitute coercion when made by officials with enforcement power. Notably, private entities’ voluntary compliance with government suggestions does not insulate the government from First Amendment liability, recognizing that apparent consent may mask genuine coercion in regulatory relationships.
Murthy v. Missouri (2024): The Complexity of Standing and Proof
The more recent Murthy v. Missouri case concerned government requests to social media companies to delete or downgrade COVID-related posts. Although the Supreme Court ultimately rejected the plaintiffs for lack of standing, dissents and lower court opinions widely raised the alarm that informal threats or regulatory nudges are often indistinguishable from outright coercion in practice.
The Murthy decision highlighted a critical challenge in jawboning cases: proving causation between government pressure and private censorship decisions. The standing requirements established in Murthy may make it even more difficult for future plaintiffs to challenge jawboning, even when clear patterns of government pressure exist.
Constitutional Framework and Legal Standards
The First Amendment prohibits government censorship, but jawboning cases often involve government speech rather than direct regulatory action. Courts must distinguish between permissible government advocacy and unconstitutional coercion. Key factors include:
The Coercion Test
Courts examine whether government pressure crosses the line from persuasion to coercion by considering the government actor’s regulatory authority over the target, the specificity and urgency of government communications, whether the government actor suggested consequences for non-compliance and the targeted entity’s reasonable understanding of the government’s intent. These factors work together to distinguish between legitimate government advocacy and unconstitutional compulsion.
Significant Encouragement Standard
Some courts have applied a “significant encouragement” test, which finds First Amendment violations when government actors significantly encourage private censorship through various forms of pressure, even without explicit threats.
Implications for Business and Civil Liberties
For small business owners, these examples underline the urgent importance of documenting all official communications, seeking legal advice when facing government requests about platform content, and recognizing that the First Amendment’s shield extends to indirect threats as well as overt mandates.
Best Practices for Businesses
Businesses facing potential government pressure should document all official communications meticulously, maintaining detailed records of any contact from government officials regarding content, speech or expressive activities. Early consultation with First Amendment attorneys becomes crucial when government officials make requests that could affect speech rights, as the line between persuasion and coercion often becomes clear only through legal analysis. Understanding that the First Amendment protects against indirect government pressure, not just direct censorship orders, empowers businesses to recognize when their rights are being threatened. Industry coordination through trade associations and professional organizations can provide collective resistance to government pressure campaigns that might overwhelm individual businesses.
Systemic Concerns
Jawboning poses particular threats to democratic discourse because it creates a shadow system of censorship that operates outside traditional constitutional safeguards. Government actors can achieve censorship outcomes without triggering the robust judicial review that direct speech restrictions would face, while maintaining plausible deniability about their censorship intent through carefully crafted communications that hint rather than command. This dynamic becomes especially problematic when officials leverage private entities’ business vulnerabilities to achieve political goals, transforming commercial relationships into instruments of political control. The practice also circumvents legislative and judicial oversight of speech restrictions, allowing unelected officials to shape public discourse through informal pressure rather than democratic processes.
The Path Forward: Addressing Jawboning in 2025 and Beyond
Looking ahead, there are proposals for addressing jawboning through executive action:
Executive Action
The White House could issue an executive order outlining how executive branch employees should interact with private companies on questions related to speech. Such an order could help establish clearer boundaries between permissible government communication and unconstitutional pressure.
Legislative Solutions
Congress could address jawboning through explicit statutory prohibitions on government pressure campaigns targeting speech, enhanced transparency requirements for government communications with speech intermediaries, private rights of action for entities subjected to unconstitutional government pressure and regular oversight hearings examining jawboning practices across agencies. These legislative tools would create both preventive measures and accountability mechanisms to constrain government overreach.
Judicial Developments
Future court decisions will likely refine the boundaries of permissible government speech, particularly regarding the specific circumstances that transform persuasion into coercion, standing requirements for jawboning plaintiffs, remedies available when jawboning is found to have occurred and the application of jawboning doctrine to emerging technologies and platforms. These developments will shape how constitutional protections adapt to evolving forms of government pressure.
Civil Society Response
In the current environment, it is unlikely any branch of government will act to control jawboning. Hence, free speech organizations, journalism groups and civil liberties advocates play crucial roles in monitoring and documenting government pressure campaigns, providing legal support for jawboning targets, educating the public about threats to free expression, and advocating for stronger legal protections against government speech suppression. These actors will serve as essential watchdogs and support systems in defending First Amendment rights against subtle government encroachment.
Conclusion: The Urgent Need for Vigilance
Taken together, the Kimmel controversy and parallel cases like the NRA, COVID-related moderation, and financial sector jawboning reinforce a broad warning: government pressure to silence speech, even when subtle or informal, can have seismic effects on the rights and operations of businesses large and small.
The jawboning phenomenon represents a fundamental challenge to First Amendment principles in the digital age. As government actors become increasingly sophisticated in their use of informal pressure tactics, the traditional boundaries between permissible government speech and unconstitutional censorship become blurred. The cases examined here demonstrate that jawboning is not merely a theoretical concern but a present and growing threat to free expression in America.
Staying vigilant, informed, and ready to assert legal protections is more crucial than ever. The preservation of free speech in American democracy depends not only on formal legal protections but also on the willingness of businesses, civil society and citizens to resist government pressure campaigns that seek to achieve through intimidation what cannot be accomplished through legitimate legal channels.
The constitutional principle that government cannot do indirectly what it is prohibited from doing directly remains as vital today as when it was first articulated. As jawboning tactics evolve and proliferate across different sectors and levels of government, maintaining this principle requires constant vigilance and active resistance from all stakeholders in America’s free speech ecosystem.