A Louisiana Judge's Dramatic Jawboning Decision
The Lawfare Podcast
The Lawfare Institute
4.7 • 6.4K Ratings
🗓️ 12 July 2023
⏱️ 58 minutes
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Summary
On July 4, a federal judge in Louisiana issued one of the most dramatic First Amendment rulings in recent memory. The case involves a variety of individuals, organizations, and conservative state governments who accuse the Biden administration of unconstitutional "jawboning”—that is, informally pressuring social media companies to censor speech, especially about controversial topics like COVID vaccines and election integrity.
Describing the allegations as the "most massive attack against free speech in United States’ history," Judge Terry Doughty enjoined by name dozens of high-level Biden administration officials, and potentially thousands more unnamed government employees, from communicating with social media companies about taking down First Amendment-protected user content.
If the opinion stands, it will have a dramatic effect on the ability of the government to communicate with social media platforms, a practice that administrations of both parties have engaged in for years. Earlier this week, Judge Doughty rejected a motion from the government to stay the injunction pending appeal; the government has since asked the Fifth Circuit to do so instead and, in a sign of how seriously it is taking the ruling, has signaled that it may ask the Supreme Court to step in if the Fifth Circuit does not.
On this episode of Arbiters of Truth, our series on the information ecosystem, Alan Rozenshtein, Associate Professor of Law at the University of Minnesota and Senior Editor at Lawfare, spoke to two of the leading experts on the government's relationship with social media platforms to work through the implications of this decision. Derek Bambauer is the Irving Cypen Professor of Law at the University of Florida Levin College of Law and is the author of an influential law review article on jawboning in the context of internet speech. Jeff Kosseff is an associate professor of cybersecurity law in the United States Naval Academy and a Lawfare contributing editor and the author of numerous books and articles about online speech issues.
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Transcript
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| 0:00.0 | The following podcast contains advertising. |
| 0:04.0 | To access an ad-free version of the LawFair podcast, |
| 0:08.0 | become a material supporter of LawFair at patreon.com slash law fair. |
| 0:14.0 | That's patreon.com slash law fair. |
| 0:18.0 | Also, check out LawFair's other podcast offerings, |
| 0:22.0 | rational security, chatter, law fair no bull, and the aftermath. |
| 0:29.0 | This Supreme Court I think is very unlikely to be comfortable with. |
| 0:37.0 | This is something that, you know, effectively at some level is not only an extraordinary restriction on government speech and on individual speech, |
| 0:45.0 | but also runs some real risk of crippling the administrative state. |
| 0:49.0 | I'm Alan Rosenstein, associate professor of law at the University of Minnesota, and senior editor at LawFair. |
| 0:55.0 | And this is the LawFair podcast for July 12, 2023. |
| 0:58.0 | Today, we're bringing you an episode of Arbiters of Truth, our series on the information ecosystem. |
| 1:03.0 | On July 4, a federal judge in Louisiana issued one of the most dramatic first amendment rulings in recent memory. |
| 1:09.0 | The case involves a variety of individuals, organizations, and conservative state governments, |
| 1:14.0 | who accuse the Biden administration of unconstitutional job voting, |
| 1:17.0 | that is, informally pressuring social media companies to censor speech, |
| 1:21.0 | especially about controversial topics like COVID vaccines and election integrity. |
| 1:26.0 | Describing the allegations as the most massive attack against free speech in United States history, |
| 1:31.0 | Judge Terry Dowdy and joined by name dozens of high level Biden administration officials, |
| 1:36.0 | and potentially thousands more unnamed government employees from communicating with social media companies |
| 1:41.0 | about taking down first amendment protected user content. |
| 1:44.0 | If the opinion stands, it will have a dramatic effect on the ability of the government to communicate with platforms, |
... |
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