Amicus Curiae Brief — Rogan O'Handley, Petitioner v. Shirley N. Weber, California Secretary of State, et al.

No. 22-1199

In the

Supreme Court of the United States

ROGAN O’HANDLEY,

Petitioner,

v.

SHIRLEY N. WEBER, in her official capacity as California

Secretary of State, ET AL.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE THE BUCKEYE

INSTITUTE IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI

Jay R. Carson (0068526)

Counsel of Record

David C. Tryon (0028954)

THE BUCKEYE INSTITUTE

88 East Broad Street,

Suite 1300

Columbus, Ohio 43215

(614) 224-4422

j.carson@buckeyeinstitute.org

d.tryon@buckeyeinstitute.org

July 12, 2023

Attorneys for Amicus Curiae

The Buckeye Institute

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE .............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................2

ARGUMENT ................................................................3

A. Will No one Rid Me of These Turbulent

Tweets? ...................................................................3

B. Academic Views of Jawboning ...............................6

C. Jawboning’s Unhappy Bipartisan History ..........13

D. Jawboning’s Allure and Dangers .........................17

CONCLUSION ..........................................................22

ii

TABLE OF AUTHORITIES

Cases

Biden v. Knight First Amendment Inst. at Columbia

Univ., 141 S. Ct. 1220 (2021) ................................. 6

Changizi v. Dep’t of Health & Hum. Servs.,

602 F. Supp. 3d 1031 (S.D. Ohio 2022) ............... 17

First Unitarian Church of Los Angeles v. Cnty. of Los

Angeles, 357 U.S. 513, 78 S.Ct. 1352, 2 L.Ed.2d

1460 (1958) ....................................................... 9, 21

Norwood v. Harrison,

413 U.S. 455 (1973) ................................................ 6

Statutes

Cal. Bus. & Prof. Code § 22678(a)...............................5

Cal. Civ. Code § 52.1(b) ...............................................5

Cal. Elec. Code § 18302 ...............................................5

Cal. Elec. Code § 18502 ...............................................5

Cal. Elec. Code § 18540 ...............................................5

Cal. Elec. Code § 18543 ...............................................5

Cal. Gov. Code § 84504.6 .............................................5

Other Authorities

Derek E. Bambauer, Against Jawboning,

100 Minn. L. Rev. 51 (2015) ........................ 2, 12, 13

Derek E. Bambauer, Orwell’s Armchair,

79 U. Chi. L. Rev. 863 (2012) ................................ 19

iii

Jerry Brito, “Agency Threats” & the Rule of Law:

An Offer You Can’t Refuse,

37 Harv. J.L. & Pub. Pol’y 553 (2014) ............ 10, 11

Robert Dodsley, The Chronicle of the Kings of

England, from William the Norman to the

Death of George III (1821), J. Fairburn. P. 27,

https://archive.org/details/chroniclekingse00

saddgoog .................................................................. 4

Clare Foran, The Atlantic, Why Hillary Clinton

Thinks She Lost the Election (May 2, 2016),

https://www.theatlantic.com/politics/archive/2017/

05/hillary-clinton-election-trump-fbi-russiahacking/525183/..................................................... 14

Robert Justin Goldstein, PRELUDE TO MCCARTHYISM:

THE MAKING OF A BLACKLIST, 38 Prologue Mag.,

no. 3 (2006).

https://www.archives.gov/publications/prologue/20

06/fall/agloso.html ................................................. 15

Judges 15:15-16 (King James) .................................... 2

Knight Foundation, Free Expression in America Post2020 (2022),

https://knightfoundation.org/reports/freeexpression-in-america-post-2020/. ........................ 20

Kreimer, Censorship by Proxy: The First Amendment,

Internet Intermediaries, & the Problem of the

Weakest Link, 155 U. Pa. L. Rev. 11 (2006) ... 17, 18

iv

Patrick Ruffini, Why Russia’s Facebook ad campaign

wasn’t such a success, The Wash. Post (Nov. 3,

2017), https://www.washingtonpost.com/outlook/

why-russias-facebook-ad-campaign-wasnt-suchsuccess/ 2017/11/03/b8efacca-bffa-11e7-8444a0d4f04b89eb_story.html...................................... 14

To Secure These Rights: The Report of the President’s

Committee on Civil Rights, No. 47 (1947),

https://www.trumanlibrary.gov/library/to-securethese-rights#47 ................................................ 21, 22

Wasserman, Symbolic Counter-Speech,

12 Wm. & Mary Bill Rts. J. 367 (2004) ................ 20

Tim Wu, Agency Threats,

60 Duke L. J. 1841 (2011) ............................... 7, 8, 9

1

INTEREST OF AMICUS CURIAE 1

Amicus Curiae The Buckeye Institute

respectfully submits its brief in support of the

Petitioners’ Writ of Certiorari. The Buckeye Institute

was founded in 1989 as an independent research and

educational institution—a think tank—whose mission

is to advance free-market public policy in the states.

The staff at The Buckeye Institute accomplishes the

organization’s mission by performing timely and

reliable research on key issues, compiling and

synthesizing data, formulating free-market policy

solutions, and marketing them for implementation in

Ohio and replication nationwide. The Buckeye

Institute is a nonpartisan, non-profit, tax-exempt

organization as defined by I.R.C. section 501(c)(3). The

Buckeye Institute’s Legal Center files and joins

amicus briefs that are consistent with its mission and

goals. The Buckeye Institute frequently litigates to

support the First Amendment rights of individuals

and a free press. In this case, the allegations of the

Petitioners and the substantial evidence adduced to

support them, raise significant concerns regarding the

blurring of lines between permissible government

speech and impermissible censorship schemes, as well

as the expansion of the government speech doctrine.

The questions presented in this case are important

and will continue to recur. This case is an excellent

1 Pursuant to Rules 37.2(a) and 37.3(a), The Buckeye Institute

states that it has provided timely notice of its intent to file this

amicus brief to all parties in the case. Further, pursuant to Rule

37.6, no counsel for any party has authored this brief in whole or

in part and no person other than the amicus has made any

monetary contribution to this brief’s preparation or submission.

2

vehicle for deciding the questions presented. For the

foregoing reasons, the Court should grant the

Petitioners’ Writ of Certiorari.

INTRODUCTION AND SUMMARY OF

ARGUMENT

And he found a new jawbone of an ass,

and put forth his hand, and took it, and

slew a thousand men therewith.

And Samson said, With the jawbone of an

ass, heaps upon heaps, with the jaw of an

ass have I slain a thousand men.

Judges 15:15–16 (King James).

The biblical story of Samson slaying a thousand

men with the jawbone of an ass is meant to convey his

divinely endowed strength. He could eviscerate an

army, singlehandedly, wielding only a happenstance

and improbable weapon. In the early 1960s, the term

“jawboning” entered the political lexicon to describe a

President’s ability to accomplish a similar feat of

political strength—commanding regulatory policy—

through the seemingly innocuous tool of public and

private statements. Derek E. Bambauer, Against

Jawboning, 100 Minn. L. Rev. 51, 57 (2015) (defining

jawboning and noting the term’s biblical origin).

However, it is not just the President who wields this

power; state governments, too, can engage in

jawboning to exert influence and control over various

entities. In the context of the modern regulatory state,

this power is not limited to the battlefield of Lehi but

extends to the battleground of public discourse and

free speech. While Samson’s prowess on the battlefield

3

of Lehi was considerable, his supernatural strength

pales in comparison to the modern regulatory state’s

power to smite the speech, stories, and ideas of

political philistines with whom it disagrees.

In the case at hand, jawboning takes on a new

dimension. Through public statements, the possibility

of monetary sanctions, and informal pressure, the

government can exert influence over social media

communications. This is akin to wielding the jawbone

of an ass in the digital age, where words and

statements can have far-reaching consequences. This

brief emphasizes the legal and cultural hazards of

governance by jawboning, reflects on some dark

chapters of American history occasioned by it, and

argues that governmental jawboning is inconsistent

with the First Amendment’s protections, the

constitutionally mandated separation of powers, and

the rule of law.

ARGUMENT

A. Will No one Rid Me of These Turbulent

Tweets?

Had Twitter been available to Thomas à

Becket—Archbishop of Canterbury and Lord

Chancellor to King Henry II in the 1160s—the

separation of church and state that would become a

cornerstone of liberal democracies might have

emerged centuries earlier. Still, limited to quill and

scroll and horseback delivery, Becket and his defense

of church independence against royal prerogative

achieved the medieval equivalent of going viral. The

King was enraged by, among things, Becket’s

insistence that church authorities, rather than the

4

Crown, had exclusive jurisdiction to try criminal cases

against clergy. And although the King theoretically

enjoyed absolute power, because Becket was a papal

legate, the King was nevertheless politically

constrained in what direct action he could take against

Becket. So, like a state official, frustrated by a stream

of election-skeptic tweets, Henry reportedly

complained to four of his knights—“will no one deliver

me this turbulent priest?” See Robert Dodsley, The

Chronicle of the Kings of England, from William the

Norman to the Death of George III 27 (1821),

https://archive.org/details/chroniclekingse00saddgoog.

The knights, eager to earn favor or avoid

reprobation from their King—a man with significant

power to influence their lives and fortunes—stepped

in to solve Henry’s problem by murdering Becket in

Canterbury Cathedral. Id.

Setting aside for the moment the First

Amendment’s obvious legal constraints on the

government’s ability to censor speech, modern state

governments face political constraints just as Henry II

did in dealing with Becket. Indeed, while the First

Amendment allows certain limited types of

censorship, such as the prevention of publication of

national security secrets, governments that are seen

as using their influence to silence political

commentary or label it as misinformation tend to

activate the public’s vigilance against government

censorship. In the present case, faced with social

media posts that contained political commentary

which the State of California deemed as

misinformation, the state government employed a

strategy reminiscent of King Henry’s approach. The

5

state government, through recommendations and the

threat of fines, 2 induced the censorship of O’Handley’s

Twitter account. In this case, the state sent Twitter a

letter demanding that it “do more to rid your platforms

of the dangerous disinformation” and threatening that

the state would not “hesitate to enforce these laws.” 3

Thereafter, Twitter reduced O’Handley’s account

visibility, removed tweets, and eventually, banned

him from the platform—eliminating his ability to

speak altogether. The State of California was not the

first to employ such tactics and, given the dynamics of

government power and human nature, it will not be

the last. While it would be plainly unconstitutional for

any government entity to directly order social media

2 “[A] social media company shall submit to the Attorney General

a terms of service report,” containing a “detailed description of

content moderation practices used by the social media company,”

such as “[h]ow the social media company would remove

individual pieces of content, users, or groups that violate the

terms of service, or take broader action against individual users

or against groups of users that violate the terms of service.” This

includes content deemed “disinformation or misinformation.” A

failure to comply with the code results in “a civil penalty not to

exceed fifteen thousand dollars ($15,000)” Cal. Bus. & Prof. Code

§ 22678(a).

Letter from Cal. Attorney General at 4, 8 (Nov. 3, 2022),

perma.cc/GC42-XCX4 (citing Cal. Civ. Code § 52.1(b), Cal. Elec.

Code §§ 18302, 18502, 18540, 18543, and Cal. Gov. Code

§ 84504.6 and attaching “addendum” with a “non-exclusive list of

relevant election-related laws” (urging Twitter to “increase your

efforts in purging your platforms of the harmful false

information, incorrect news, conspiracy speculations, and threats

that amplify political violence, disseminate fear and doubt, and

in the end, undermine our democratic process,” and assuring that

“[t]he California Department of Justice won't hold back in

implementing these laws”).

3

6

posts to be removed, their distribution throttled back,

or the offending posters be de-platformed, social media

platforms might accomplish the goal under the guise

of responsible content moderation when influenced by

government entities.

Of course, as the Petitioners make clear, the

government cannot engage in censorship by proxy by

inducing, encouraging, or promoting “private persons

to accomplish what it is constitutionally forbidden

from accomplishing.” Norwood v. Harrison, 413 U.S.

455, 465 (1973); see also Biden v. Knight First

Amendment Inst. at Columbia Univ., 141 S. Ct. 1220,

1226 (2021) (Thomas, J., concurring) (“The

government cannot accomplish through threats of

adverse government action what the Constitution

prohibits it from doing directly.”). The government’s

influence over a private entity in suppressing speech

constitutes a backdoor censorship that raises serious

First Amendment concerns. The petition for writ of

certiorari should therefore be granted.

B. Academic Views of Jawboning

Three law review articles—all written before

the pandemic and the concerns raised in this action—

have ably presented the arguments for and against

governmental jawboning. The consensus that emerges

is that even if the use of threats by the government in

certain circumstances might be appropriate—or at

least constitutionally tolerable—in pursuit of

legitimate regulatory goals, jawboning third parties to

engage in extra-constitutional action is not.

First, in 2015, Tim Wu, a senior advisor to the

Federal Trade Commission and Columbia Law

7

Professor—with a political cynicism that would make

Machiavelli blush—wrote an article extolling the

virtues of governance through jawboning aptly titled

Agency Threats. Tim Wu, Agency Threats, 60 Duke L.

J. 1841 (2011). Professor Wu posits that “[t]he use of

threats instead of law can be a useful choice—not

simply a procedural end run.” Id. at 1842. “Threat

regimes,” he suggests, “are important and are best

justified when the industry is undergoing rapid

change—under conditions of ‘high uncertainty.’

Highly informal regimes are most useful, that is, when

the agency faces a problem in an environment in

which facts are highly unclear and evolving.” Id.

“Conditions of high uncertainty” only begin to

encompass the challenges that social media platforms

have confronted in managing information amid the

annus horribilis that was 2020 and the two years that

have followed it, such as when the facts here took

place. This period was further convoluted by the fog of

uncertainty of facts surrounding the national election

and the prevailing state of the country. Coupled with

the inherent dynamism of social media, characterized

by swift and often unnoticed modifications in rules,

changes in programming algorithms, and fluid

company policies, it provides a fertile ground for the

Court to examine Professor Wu’s theory.

Wu goes on to state the obvious: “[t]he greatest

advantage of a threat regime is its speed and

flexibility.” Id. at 1851. Regulation by threat is

expedient because “a threat is extant the moment it is

made—its final shape, so to speak, is immediately

apparent.” Id. He downplays the obvious due process

concerns, ensuring readers that “the argument that

8

rule by threat is a means of avoiding judicial review

may be overstated.” Id. at 1843. In his view,

[t]hreats are, by their nature, just that:

threats to enforce or enact a rule, not

binding actions in the usual sense of that

word. Regulated entities that are

unhappy with a de facto regime can and

do test the threats, forcing the agency to

use its more formal powers and therefore

invoke judicial review.

Id.

Wu’s assurance that if a regulated entity is

unhappy it will sue, however, overlooks the

fundamental power dynamic that makes jawboning

effective: the regulated entity wants to avoid conflict

with the regulator. Wu also fails to suggest how to

remedy the harm done to customers of the regulated

entity, who will end up bearing the cost of the

regulation but have little direct legal recourse against

the government and are hard-pressed to get

information regarding the communications between

the government and the regulated entity. Indeed, with

California’s watchful eye and a fiscal deterrent, social

media platforms might grudgingly and blindly follow

directives on what is deemed “misinformation,”

leaving both them and their users burdened with costs

and in the dark about the monitoring process.

The equation is even more complicated in the

case of social media, where the “customers” who

purchase advertising from social media have different

interests than the end-users who use the social media

product to communicate. Most advertisers would

9

likely have no qualms with social media companies

removing posts with which the majority of social

media users might disagree. A “stultifying conformity”

of thought may be “destructive to a free society,” but it

is not necessarily bad for advertisers. See First

Unitarian Church of Los Angeles v. Cnty. of Los

Angeles, 357 U.S. 513, 532 (1958) (Black, J.,

concurring) (Discussing impact of unconstitutional

loyalty oaths on free expression and civil discourse).

Professor Wu closes his defense of agency

threats by noting the sound governance practices of

Vito Corleone in “The Godfather,” who used threats

accented by the occasional enforcement actions to

achieve his aims. Wu, supra, at 1847. While the

comparison is made tongue-in-cheek, it is nevertheless

apt. In fairness to Professor Wu, his article focuses on

encouraging private actors to accept or self-impose

regulatory burdens that do not, on their face, offend

the Constitution. Professor Wu assumes, perhaps

naively, that regulatory threats would be used only to

accomplish other legitimate regulatory goals. In other

words, the state or a regulatory agency within the

state would likely have the authority to enact or

establish the type of jawboned policies he suggests,

but the processes of enacting laws or working under

established frameworks—i.e., providing due process—

are deemed inconvenient and inefficient. Professor Wu

acknowledges that the Executive branch would abuse

its power if an agency used “threats to take actions

that Congress has specifically barred, or to accomplish

objectives for which it would otherwise lack delegated

authority.” Id. at 1854. The jawboning in the instant

case presents a much graver problem because it

10

involves restrictions on speech that would be entirely

impermissible if the government acted directly. The

facts pled in the present case call to mind not Vito

Corleone—but his son Michael—who begins with

noble intentions but nevertheless falls victim to the

lure of power.

For those who would prefer the government

operate more like a constitutional republic and less

like an organized crime family, Jerry Brito, a lawyer

and Senior Research Fellow at George Mason

University’s Mercatus Institute published a response

to Professor Wu’s article. Jerry Brito, “Agency

Threats” & the Rule of Law: An Offer You Can’t Refuse,

37 Harv. J.L. & Pub. Pol’y 553 (2014). Brito argues—

correctly in the view of the amicus—that jawboning

regulated entities into submission by threats of

greater regulation replaced the rule of law with the

rule of men. The fatal flaw of governance by jawboning

threats is human nature:

[H]aving ejected the rule of law in an

attempt to secure “speed and flexibility,”

[Wu] is forced to recreate a stand-in of

that very same rule of law through

“guidelines” and “lists” made to prevent

the predictable consequences of the rule

of men. As much as one would like to

have omniscient, benevolent angels for

regulators, unfortunately only “fallible

men” are available.

Id. at 568.

11

Brito offers a realistic view of how regulatory

threats have operated to expand governmental power

beyond what it could legally enforce, using as an

example a speech by former FCC Chairman Michael

Powell to internet service providers:

Much like a mobster’s threat, Chairman

Powell’s speech was a mere suggestion to

the industry. After all, the FCC had no

legal way to enforce his edict. Powell was

just saying, “Boy, it would sure be nice if

the industry started behaving this way.”

Then the FCC’s Enforcement Bureau

opened an investigation into a small

carrier; a simple letter of inquiry, not a

formal enforcement action predicated on

any agency rulemaking. In less than a

month, however, the carrier had signed a

consent decree pledging to adhere to the

suggestions in Powell’s speech and

coughing up a $15,000 contribution to

the U.S. Treasury. The rest of the

industry got the message loud and clear.

Id. at 565–66. Thus, while the FCC’s letter of inquiry

carried little legal weight, the potential of a formal

investigation and all of the risks, costs, and negative

publicity that would accompany it were enough to get

the carrier to agree to plainly extra-legal terms and to

send a message to the rest of the industry. Even if

Powell’s motives were pure, even if the industry

reforms were salutary, there is more than a whiff of

extortion in the air.

12

In Against Jawboning, Professor Derek

Bambauer directly addresses the constitutional

hazards of jawboning in relation to speech regulation

on internet platforms. Derek E. Bambauer, Against

Jawboning, 100 Minn. L. Rev. 51 (2015). Using the

example of a state attorney general subpoena to

Google meant to lend aid to the motion picture

industry’s crackdown on video piracy, Professor

Bambauer notes that what Professor Wu saw as the

exception—seeking to enforce results that lie beyond

an executive’s legal capacity—is the norm when it

comes to jawboning. The state attorney generals

involved “sought to coerce the company based on

threatened action at the edges of or wholly outside

their legal authority.” Id. at 55. The constitutional

concern “is not simply the motivation; state officials

advocate for interest groups constantly,” but that the

attorney general “threatened Google despite lacking

authority over the subject matter of his investigation.”

Id. Why would any company accede to threats and

suggestions from the government when it knew that

the government lacked any legal authority to enforce

them? “Cost and uncertainty,” Professor Bambauer

answers:

As to cost, even a subpoena that was

ultra vires—beyond the official’s power—

would cause Google to incur potentially

significant

expense.

Lawyers

at

WilmerHale—Google’s outside counsel—

do not come cheap, and if Hood defeated

the motion for the temporary restraining

order, Google would have had to comply

with burdensome discovery. And the

13

potential costs were more than

pecuniary—the MPAA planned to

allocate budget to media outreach efforts

designed to harm Google’s reputation.

Even false accusations can wound.

Id. at 56. According to Professor Bambauer, “The costbenefit calculus is clear: it makes sense to censor

anything questionable.” Id. at 86.

C. Jawboning’s Unhappy Bipartisan History

Although at present, this case alleges a

Democratic state government exerting influence on

social media platforms to ban or limit speech by

individuals perceived to be on the right, instances of

power abuse through jawboning are not limited to a

specific political affiliation, as history demonstrates,

bipartisan tendencies and examples exist at the state,

local, and federal levels. Professor Bambauer offers

numerous examples, most notably, President George

W. Bush authorized the National Security Agency to

conduct surveillance on Americans’ international

telephone calls and e-mail traffic without obtaining

either a Title III warrant or an order under the

Foreign Intelligence Surveillance Act. Bambauer,

supra, at 91. The telecom providers agreed to provide

the information at the administration’s request.

Because lack of transparency is one of the bugs—or

features—of jawboning, depending on one’s point of

view, it is impossible to know to what extent the

telecom providers’ acquiescence was motivated by fear

of regulatory retaliation, a sense of patriotism in the

wake of the 9/11 attacks, the wish to be “part of the

solution,” or a mosaic of motives. What is clear is that

14

these third parties were willing to engage in

investigative steps that the administration could not

legally take directly.

Earlier governmental jawboning also gave rise,

in part, to the practice of industry blacklisting—most

notably in Hollywood—of persons suspected of

harboring communist sympathies. To be sure,

legislative jawboning by members of the House UnAmerican Activities Committee and Senator Joseph

McCarthy played a significant role in feeding

anticommunist paranoia. But the movement’s roots

stem from an executive pronouncement. With the

Soviet Union’s assertion of dominance over Eastern

Europe and communism on the march worldwide,

American policy makers became increasingly

concerned over Soviet attempts to influence and

subvert what they saw as American values through

subtle propaganda and the infiltration of American

government and private institutions. 4 In December

1947—more than two years before Senator Joseph

4 While history didn’t exactly repeat itself, it certainly rhymed

when fears of Russian influence in the 2016 election came to the

fore and served as a topic for politicians to jawbone. See, e.g.,

Clare Foran, The Atlantic, Why Hillary Clinton Thinks She Lost

the Election (May 2, 2016), https://www.theatlantic.com/

politics/archive/2017/05/hillary-clinton-election-trump-fbirussia-hacking/525183/. While the actual evidence of Russian

“bots” influencing the election was slim, See Patrick Ruffini, Why

Russia’s Facebook ad campaign wasn’t such a success, The Wash.

Post (Nov. 3, 2017), https://www.washingtonpost.com/outlook/

why-russias-facebook-ad-campaign-wasnt-such-success/

2017/11/03/b8efacca-bffa-11e7-8444-a0d4f04b89eb_story.html,

social media companies anxious to stave off the new Russian

subversion and reassure users and regulators that social media

undertook a voluntary purge of suspected ‘bot’ accounts.

15

McCarthy made his first public allegations of

widespread communist infiltration of the federal

government—the U.S. Attorney General published

the “Attorney General’s List of Subversive

Organizations” (“AGLOSO”). Robert Justin Goldstein,

Prelude to McCarthyism: The Making of a Blacklist, 38

Prologue Mag., no. 3 (2006),https://www.archives.gov/

publications/prologue/2006/fall/agloso.html.

The list imposed no direct sanctions on any of

the organizations named. But “as various scholars

wrote

contemporaneously

and

subsequently,

AGLOSO, which was massively publicized in the

media, became what amounted to “an official

blacklist.” In the public mind it came to have

“authority as the definitive report on subversive

organizations,” understood as a “proscription of the

treasonable activity of the listed organizations” and

the “litmus test for distinguishing between loyalty and

disloyal organizations and individuals.” Id. Notably,

the list was never accompanied by any proof that any

of the organizations on it had engaged in any criminal

activity or sought to “subvert” the American

government.

It was instead a list of the usual suspects. The

list served its purpose of dissuading citizens from

joining or associating with the groups on it. Many of

the organizations folded. That same year, the House

Un-American Activities Committee (“HUAC”), which

had formed in 1938, began investigating communist

subversion in the motion picture industry. Like King

Henry’s knights, Hollywood took the hint. The studio

heads agreed among themselves not to hire actors and

screenwriters who exercised their constitutional

16

rights to decline to cooperate with HUAC as well as

anyone with alleged ties to “subversive organizations.”

Because the studios were acting as private entities,

simply trying to act “responsibly” and enforcing their

private preference to hire only patriotic Americans,

there was no need for actual evidence of any ties to

subversive groups like the one named on the AGLSO.

Rumor and hearsay were sufficient. By 1956, even

McCarthyism began to wane, Elks Magazine “carried

an article entitled What the Attorney General’s List

Means, which began by accurately noting that “there

are few Americans who have not heard of ‘the Attorney

General’s subversive list’” and concluded by declaring,

“There is no excuse for any American citizen becoming

affiliated with a group on the Attorney General’s list

today.” Id.

The Red Scare purge of the 1950s highlights the

insidious nature of government censorship by proxy.

Blacklisting—like the de-platforming and reducing

visibility at issue here—operates in the dark.

Individuals may not be fully aware that the reach of

their tweets has been limited or that their content is

being suppressed. Blacklisted screenwriters did not

receive notice that they had been blacklisted or the

opportunity to contest that designation in any type of

hearing. They simply saw opportunities disappear.

Since private entities like the Hollywood studios of the

1950s and social media companies of today owe no

explanation, this lack of transparency allows the

censors, both government and the regulated parties,

to respond by gaslighting—simply denying that there

are any restrictions in place or any communication

between the government and the regulated entity. See,

17

e.g., the government’s response in Changizi v. Dep’t of

Health & Hum. Servs., 602 F. Supp. 3d 1031, 1048

(S.D. Ohio 2022) (No. 2:22-cv-1776).

D. Jawboning’s Allure and Dangers

Jawboning on internet speech issues by

“recruiting proxy censors” is particularly effective—

and thus particularly dangerous—because it targets

the “weakest link in the chain of communication.”

Kreimer, Censorship by Proxy: The First Amendment,

Internet Intermediaries, & the Problem of the Weakest

Link, 155 U. Pa. L. Rev. 11, 27 (2006). Targeting social

media platforms works because it “provides a

mechanism for the exercise of authority over

otherwise ungovernable conduct. Moreover, it does so

at a discount: the cost of monitoring and sanctioning

disfavored communications is largely externalized

onto the intermediaries who are the subjects of direct

regulation.” Id. As Professor Bambauer explains, “[I]t

is far easier and more effective to impose controls upon

an intermediary than upon a host of dispersed

speakers who may be difficult to identify, located

outside the regulators’ jurisdiction, or judgmentproof.” Bambauer, supra, at 85–86.

Jawboning targeted at intermediaries is also

especially pernicious because “platforms such as

Google, Twitter, Facebook, and Instagram are the new

gatekeepers for online content.” Id. at 59–60. Because

those entities serve both as gatekeepers and

repositories of online activity, they can consign

unwanted information or unfavored options to the

Orwellian “memory hole.” For all practical purposes,

“[m]aterial de-listed from Google’s search results or

18

deleted from a Twitter feed simply disappears . . . .”

Id. at 60.

Jawboning for “moderation” of internet speech,

when coupled with human nature and the natural

incentives of power, creates a perilously slippery slope.

Plainly, the state government is tasked with

protecting the welfare of its jurisdiction and by

extension its citizens. A government may see an

urgent need to take action and engage in some benign

jawboning to exert influence over corporations and

social media platforms. The government may grow to

perceive its policies relating to a specific issue as not

only correct but essential. Thus, in addition to

promoting the government’s arguments, social media

platforms may be expected to moderate or suppress

arguments made against those policies. Proceeding

from the belief that its policies are the only solution

for the betterment of the jurisdiction, the government

may view its continued governance as equally crucial.

Jawboning is also insidious because the more it

is practiced, the easier it becomes. Psychology (as well

as common sense and experience) teaches that once a

person has crossed an ethical line, it becomes

progressively easier to cross that line again. Thus, like

a paperclip that is repeatedly bent, gaining the

acquiescence of the regulated parties becomes easier

and easier until no resistance is offered. In the present

case, the open channels of communication between

Twitter and the State of California through The Office

of Election Cybersecurity, as documented by the

Petitioners, suggest a kind of regulatory entwinement.

The frequent interactions and familiarity evident in

the communications between the state government

19

and Twitter, as presented in the case, suggest a

scenario where Twitter may have developed a

disposition towards aligning its actions with the

state’s preferences. This can be likened to a form of

regulatory Stockholm Syndrome, where Twitter,

possibly initially cautious, may have progressively

become more receptive and even eager to cooperate

with the state’s requests or recommendations. The

social media platforms want to cooperate.

From the government’s viewpoint, third parties’

willingness to assist provides political cover. Even in

the 1950s an act of Congress or Executive Order

banning potential communist subversives from

working in certain private industries where they could

implant Marxist or other “un-American” ideas in the

national psyche would have faced legal challenges and

been seen as politically heavy-handedness. But if the

government simply provided information, industry

leaders who wished to appear responsible or patriotic

might act on their own initiative. Simply put, “When

the government can indirectly threaten or compel

private actors to fall in line with its preferences, there

is a threat to the constitutionally protected liberty to

exchange information that is checked poorly, if at all,

by

standard

First

Amendment

doctrine.”

Bambauer, Orwell’s Armchair, 79 U. Chi. L. Rev. 863,

898–99 (2012).

But the danger of jawboning social media

companies is not merely that it violates the First

Amendment, but that it degrades free speech and

expression as a value worth protecting. A Knight

Foundation survey on attitudes towards free speech

and expression showed Americans are increasingly

20

willing to value protection from misinformation and

freedom from insult above free expression. Free

Expression in America Post-2020, Knight Foundation

(2022), http://knightfoundation.org/wp-content/uploads

/2022/01/KF_Free_Expression_2022.pdf.

Historian

Vincent Blasi suggests a type of national “pathology”

regarding freedom of expression, defined by a “shift in

basic attitudes, among certain influential actors if not

the public at large, concerning the desirability of the

central norms of the first amendment.” Wasserman,

Symbolic Counter-Speech, 12 Wm. & Mary Bill Rts. J.

367, 402 (2004) (internal citation omitted). He posits

“historical periods when intolerance of unorthodox

ideas is most prevalent and when governments are

most able and most likely to stifle dissent

systematically.” Id. A government that emphasizes

moderation over open debate erodes public confidence

in the value of free speech and threatens to usher in

such an unwelcome age. At the same time,

government intervention in the nation’s dialogue—

even when done by proxy—also decreases trust in

government institutions. The government that cries

wolf too often or is perceived as having rigged the

argument is less likely to be believed when the wolves

inevitably arrive.

Writing in 1958—one year after Joseph

McCarthy’s death—Justice Black reflected on the

anti-communist hysteria, with its blacklists, loyalty

oaths, and demands for intellectual conformity with

words that resonate today: “The course which we have

been following the last decade is not the course of a

strong, free, secure people, but that of the frightened,

21

the insecure, the intolerant.” First Unitarian Church,

357 U.S. at 532 (Black, J., concurring).

In a pluralistic constitutional republic, societal

values exist in constant tension. Freedom is balanced

against safety. Democracy and the will of the majority

are balanced against individual liberties and minority

rights.

This often requires citizens, state

governments, and even Presidential administrations

to hold competing ideas in their heads simultaneously.

Thus, in the same year that the Truman

administration published its list of subversive

organizations, the President’s Committee on Civil

Rights, convened by President Truman in 1946,

published its report. Discussing the primacy of free

speech and the right to dissent, the Committee, like

Justice Black, saw free expression as the hallmark of

a strong nation, confidant in the capacity of free people

to reason together:

This right is an expression of confidence

in the ability of freemen to learn the

truth through the unhampered interplay

of competing ideas. Where the right is

generally exercised, the public benefits

from the selective process of winnowing

truth from falsehood, desirable ideas

from evil ones. If the people are to govern

themselves their only hope of doing so

wisely lies in the collective wisdom

derived from the fullest possible

information, and in the fair presentation

of differing opinions.

22

To Secure These Rights: The Report of the President’s

Committee on Civil Rights, No. 47 (1947),

https://www.trumanlibrary.gov/library/to-securethese-rights#47.

The State of California has no more business

moderating tweets or Facebook posts than it does

deciding who ought to write screenplays. The

jawboning of social media companies into censoring

posts disfavored by the government causes immediate

irreparable harm as a violation of the First

Amendment and may lead to longer-lasting

irreparable harm through the continued erosion of the

nation’s commitment to the First Amendment’s

principles.

CONCLUSION

For all the foregoing reasons, amicus curiae The

Buckeye Institute urges the Court to grant the Writ of

Certiorari.

Respectfully submitted,

Jay R. Carson

Counsel of Record

David C. Tryon

The Buckeye Institute

88 East Broad Street, Ste. 1300

Columbus, Ohio 43215

(614) 224-4422

j.carson@buckeyeinstitute.org

d.tryon@buckeyeinstitute.org

Counsel for Amicus Curiae