The First Amendment Protects Citizens And Businesses Against Officials Who Use Jawboning Tactics To Threaten Prosecution

jawboning
Judge Dan Hinde

Jawboning is not a word in most people’s vocabulary, even those who are highly educated. The word looks menacing and sounds sinister. And in a sense, jawboning is both menacing and sinister.

Jawboning is when government officials publicly condemn certain legal behavior that they disfavor. It is the bully pulpit on steroids, if you will. The line is drawn when an official does so as an implicit threat to coerce behavior, as opposed to an attempt to convince others of their point of view to change the law. That line has not always been easy to distinguish. And in the modern age of officials’ widespread use of the internet and social media to convey their message to the public, the line is frequently blurred.

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A public official who threatens to employ coercive state power such as prosecution to stifle protected speech violates a person’s First Amendment rights. While the term “jawboning” does not appear in the U.S. Supreme Court’s seminal opinion on this issue 60 years ago (Bantam Books v. Sullivan, 372 U.S. 58 (1963)), it is a jawboning case.

In Bantam Books, the Supreme Court held that it was unconstitutional for a Rhode Island book commission to send written notices to book distributors advising that the commission planned to refer them to the attorney general for prosecution. The commission deemed certain books “objectionable.” Upon receipt of the notices, the distributors stopped distributing the “objectionable” books even though it was legal for them to publish some of the books. The Supreme Court said the government book commission was engaged in an informal censorship scheme designed to chill the distributors’ free speech rights by threatening them with prosecution in written notices, which violated the First Amendment.

In a 2015 jawboning case (Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015)), the Seventh Circuit Court of Appeals applied the reasoning in Bantam Books and held that a Chicago sheriff’s attempt to use a threatening letter to shut down an avenue of expression of ideas and opinion violated the First Amendment.

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So, the next time you read about a government official’s use of a notice, letter, public memo, email, or social media post, ask yourself: Is this official trying to illegally jawbone me or persuade me to her point of view? John Adams put it this way in the Declaration of Rights of the Massachusetts Constitution: “to the end it may be a government of laws, and not of men.”

Indeed, our country can be a government of laws as our founders envisioned, or we can be ruled by the men and women currently in power, subject to their whims, bullying threats, and intimidation. Which do you prefer?

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Buck Dougherty

Buck Dougherty is Senior Counsel at Liberty Justice Center, a nonprofit litigation firm that restored the First Amendment rights of public employees in the landmark U.S. Supreme Court case, Janus v. AFSCME. The case filed in the U.S. District Court for the Western District of Michigan on behalf of ABC Michigan is Case No. 23-cv-00277.

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