Liar, Liar, Democracy on Fire: A Federal Elections Exception for Social Media Jawboning

Free speech is a cornerstone of American democracy, but the actual meaning of “free speech” is increasingly misunderstood in an age the Framers of the Constitution never could have foreseen. The Framers could never have accounted for the unprecedented influence of social media, one sprouting trolls, memes, and posts from every corner of the internet. Social media has undoubtedly ushered in an era defined by misinformation—the detrimental repercussions of which are best exemplified by the January 6, 2021 attack on the U.S. Capitol Building in Washington, D.C. To reduce social media misinformation, federal officials have resorted to “jawboning,” or the informal pressuring of private entities by government officials to take actions the government could not legally mandate through legislation or regulation. Even though the federal government can be good-intentioned in these efforts, resorting to unconstitutional jawboning poses a greater threat to democracy than the problems it purports to solve. It will be impossible for the government to lawfully discard of all fallacies from social media and such risks enabling another insurrection. To remedy this predicament, this Note argues for a reimagined jawboning framework that permits some collaborative government communication with private actors. The government should be permitted to work with social media companies to share essential election information grounded in facts without violating protections against coerced speech. The First Amendment cannot be protected today without tackling the dangers posed by social media’s digital distortions.