Jawboning As A First Amendment Problem

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PART OF THE FALL SEMINAR SERIES

Join us on October 19th for our weekly seminar from 12 PM - 1 PM PT featuring Genevieve Lakier, Professor of Law at University of Chicago's Law School and CPC Co-Director, Nate Persily. This series is organized by the Program on Democracy and the Internet, and the Cyber Initiative at the William and Flora Hewlett Foundation.

For years now, scholars have expressed alarm at the tendency of government officials to pressure—or “jawbone”—social media companies into taking down what the officials consider to be harmful or offensive speech, even when no law requires it. Scholars have worried, for good reason, that the practice of jawboning allows government officials to evade the stringent constraints on their power to regulate speech imposed by the First Amendment. But relatively little attention has been paid to the constitutional question of whether, or rather when, government jawboning itself violates the First Amendment. In fact, answering this question turns out to be quite difficult because of deep inconsistencies in the cases that deal with jawboning, both in the social media context and beyond. In this talk, I will explore what those inconsistencies are, why the case law is so unclear about where the line between permissible government pressure and unconstitutional governmental coercion falls, and what kind of jawboning rule might be necessary to protect free speech values in a public sphere in which both private companies and government officials possess considerable power to determine who can and cannot speak.

Speaker Profile:

Genevieve Lakier teaches and writes about freedom of speech and American constitutional law. Her work examines the changing meaning of freedom of speech in the United States, the role that legislatures play in safeguarding free speech values, and the fight over freedom of speech on the social media platforms.
 
Genevieve has an AB from Princeton University, a JD from New York University School of Law, and an MA and PhD in anthropology from the University of Chicago. Between 2006 and 2008, she was an Academy Scholar at the Weatherhead Center for International and Area Studies at Harvard University. After law school, she clerked for Judge Leonard B. Sand of the Southern District of New York and Judge Martha C. Daughtrey of the Sixth Circuit Court of Appeals. Before joining the faculty, Genevieve taught at the Law School as a Bigelow Fellow and Lecturer in Law. She will serve as the Senior Visiting Research Scholar at the Knight Institute at Columbia University for the 2021-2022 school year, where she will be supervising a project exploring the relationship between the First Amendment and the regulation of lies, disinformation and misinformation.