When “Jawboning” Creates Private Liability

Source: Electronic Frontier Foundation
by David Greene

“For the last several years we have seen numerous arguments that social media platforms are ‘state actors’ that ‘must carry’ all user speech. According to this argument, they are legally required to publish all user speech and treat it equally. Under U.S. law, this is almost always incorrect. The First Amendment generally requires only governments to honor free speech rights and protects the rights of private entities like social media sites to curate content on their sites and impose content rules on their users. Among the state actor theories presented is one based on collaboration with the government on content moderation. ‘Jawboning’ — or when government authorities influence companies’ social media policies — is extremely common. At what point, if any, does a private company become a state actor when they act according to it?” (06/21/22)