Rethinking Government 'Jawboning' as a Form of Collaborative Regulation

Legal scholar Daniel Browning argues that indirect government pressure on private intermediaries—known as jawboning—should be evaluated case by case rather than assumed hostile to free speech.

Daniel Browning’s contribution to the Journal of Free Speech Law challenges the prevailing view that government-initiated pressure on private intermediaries—referred to as jawboning—is inherently detrimental to free expression. He first offers a precise definition, describing it as a triadic relationship where officials communicate with an intermediary to affect a third party’s behavior, without directly persuading the intermediary.

Placing jawboning within the literature on collaborative or "new" governance, Browning portrays it as a hybrid regulatory tool that sits between outright state action and wholly private ordering. The article reviews two 2024 Supreme Court cases, noting that while one was dismissed, the other reaffirmed that coercive jawboning can violate the First Amendment. Browning argues that the normative assessment of jawboning must consider the government’s intent, the value of the speech targeted, and the intermediary’s autonomy. He recommends that courts adopt a more nuanced, factor-based approach when evaluating First Amendment challenges to such indirect regulation.