Jawboning does not appear in the vocabulary of most people, including those with high education. The word is menacing, and it sounds sinister. Jawboning can be both sinister and menacing.
Jawboning occurs when government officials publicly criticize certain legal behaviors that they dislike. If you like, it’s the bully pulpit boosted to a new level. When an official uses this tactic as a threat to coerce others, rather than to try to convince them of their viewpoint to change the laws, a line is drawn. This line was not always easy to discern. In the age of social media and internet, it is often difficult to distinguish the difference.
The First Amendment is violated when a public official threatens to use coercive state powers, such as prosecution, to suppress protected speech. The term “jawboning,” which was not used in the U.S. Supreme Court opinion 60 years ago, Bantam Books v. Sullivan372 U.S. 58(1963)), is still applicable.
In Bantam Books the Supreme Court ruled that it was unconstitutional to have a Rhode Island Book Commission send written notices to distributors informing them that they planned to refer the book sellers to the Attorney General for prosecution. The commission had deemed some books as “objectionable”. Upon receiving the notices, distributors stopped selling the “objectionable’ books even though they were legally allowed to publish them. The Supreme Court ruled that the government book commission engaged in a scheme of informal censorship to suppress the free speech rights of distributors by sending them written warnings. This violated the First Amendment.
In a jawboning case from 2015 ( Backpage. Com, LLC v. Dart. 807 F.3d 229), the Seventh Circuit Court of Appeals applied the reasoning in em>Bantam Books/em> and held that a Chicago sheriff’s attempt to use threatening letters to shut down an avenue of expression of ideas and opinions violated First Amendment. The Seventh Circuit Court of Appeals (2015) applied the reasoning from Bantam Books to hold that a Chicago Sheriff’s attempt to shut down a avenue of expression of opinions and ideas using a threatening email violated the First Amendment.
Next time you see a government official using a letter, notice, memo, email or social media posting, ask yourself if they are trying to persuade or intimidate me. John Adams said it in the Declaration of Rights of the Massachusetts Constitution, “to the end that it may be a law-governed government and not one of men.”
Our country can indeed be a government of law as our founding fathers intended, or it can be ruled either by men and women in power who are subject to their whims and fancies, threats and intimidation, and bullying. Which would you prefer?
The first time Attorney at Law Magazine published the article First Amendment Protections for Citizens and Businesses against Officials who Threaten Prosecution.