by James Lyons-Weiler, PhD, Popular Rationalism, ©2025
(Jul. 3, 2025) — In the digital age, the U.S. government no longer needs overt statutes or censorship boards to restrict speech. Instead, it uses a more insidious tool: jawboning — informal pressure exerted on private platforms to moderate, suppress, or algorithmically demote disfavored content. Often veiled as “advisory guidance,” this technique has allowed federal actors to shape discourse while avoiding First Amendment scrutiny.
Landmark rulings like Bantam Books v. Sullivan (372 U.S. 58, 1963) and Murthy v. Missouri (5th Cir. 2023, SCOTUS 2024) expose the core constitutional tension: how far can the state go in influencing speech before it becomes de facto censorship? The answer remains disturbingly vague.
Historical Precedent: Bantam Books v. Sullivan
In Bantam Books, a Rhode Island commission created a list of “objectionable” books and distributed it to book vendors, warning that continued distribution could lead to legal trouble. Although the list carried no formal legal authority, the Supreme Court held that it exerted sufficient pressure to constitute unconstitutional state censorship:
“Although the Commission is limited to informal sanctions… it deliberately set about to achieve the suppression of publications deemed ‘objectionable,’ and succeeded in its aim.”
This ruling established the principle that informal state pressure can constitute a constitutional violation, even in the absence of formal law or prosecutorial action.
These cases clarify that government actors cannot use direct or indirect means to pressure or compel entities to suppress speech without violating the First Amendment. State-sponsored media, public universities, or in-kind subsidized intermediaries such as tech platforms receiving preferential access or regulation-free zones, are also bound by these rules when acting under color of law.
Modern Parallel: Murthy v. Missouri
Decades later, the principles in Bantam Books resurfaced in the digital realm. In Murthy v. Missouri, plaintiffs alleged that agencies like the White House, Surgeon General, CDC, FBI, and CISA colluded with social media companies to censor speech concerning COVID-19, vaccine safety, and election integrity.
In 2023, the Fifth Circuit ruled that:
- The White House and Surgeon General engaged in coercion.
- The CDC and CISA provided significant encouragement.
- The FBI engaged in coercion as well.
A sweeping injunction was issued, blocking federal agencies from coercing or significantly encouraging platforms to suppress lawful speech. However, in Murthy v. Missouri, 600 U.S. 23-411 (2024), the Supreme Court stayed the injunction, finding plaintiffs lacked standing. Critically, it did not rule on the merits, leaving unresolved whether government pressure short of formal compulsion violates the First Amendment.
Justice Barrett wrote:
“To establish standing, the plaintiffs must demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek.”
And further:
“The plaintiffs do not seek to enjoin the platforms… they seek to enjoin government agencies. The one-step-removed, anticipatory nature… presents… injury that results from the independent action of some third party not before the court.”
State-Sponsored Media and In-Kind Censorship Incentives
The Supreme Court has not directly ruled on the status of state-sponsored or government-aligned media with respect to indirect censorship. However, Rosenberger and AOSI provide a clear signal: in-kind sponsorship, including immunity from antitrust enforcement, favorable regulatory treatment, and contract preference, can create unconstitutional conditions when used to suppress viewpoint diversity.
Platforms such as Facebook have enjoyed tacit protection from regulatory risk and scrutiny. One need only recall the 2018 Zuckerberg hearings before Congress, where lawmakers hinted at the possibility of antitrust action, FTC scrutiny, and federal oversight if content moderation was not tightened. While no formal sanctions followed, the implicit threat was unmistakable. Had Facebook not cooperated, it faced the risk of punitive legislative and regulatory retribution.
That absence of formal punishment constitutes a form of in-kind sponsorship: silence in exchange for compliance. This perverse incentive structure transforms social media companies into state-sponsored silencers without a single act of Congress.
At the October 23, 2019, House Financial Services Committee hearing:
Rep. Ocasio-Cortez: “So you won’t take down lies, or you will take down lies? I think that’s a pretty simple yes or no.”
Zuckerberg: “In most cases, in a democracy, I believe that people should be able to see for themselves what politicians … are saying and judge their character for themselves.”
Read the rest here.