Lakier on Enforcing the First Amendment in an Era of Jawboning

Genevieve Lakier, University of Chicago Law School, is publishing Enforcing the First Amendment in an Era of Jawboning in the University of Chicago Law Review. Here is the abstract.

First Amendment law tends to focus on the exercise of formal government power. Nevertheless, for over six decades now, it has been black letter law that informal government power can violate the First Amendment when it creates what the Court described in Bantam Books v. Sullivan as an “informal system of censorship,” outside the reach of the formal system. Lower courts have been deeply divided, however, about what kinds of government actions create this kind of informal system. The Court’s decision last term in NRA v. Vullo should end this division. In Vullo, the Court made clear that officials engage in informal censorship whenever they intentionally use their informal power to evade the constraints that the First Amendment imposes on their formal powers. Vullo made clear, moreover that this principle is a categorical one: that officials may never attempt to evade constitutional constraints on their power by threatening harm or promising benefits to private parties and this is true no matter how severe, or insignificant, the harm or benefit they promise may be, and regardless of whether the scheme succeeds. In this Article, I argue that the Court’s reaffirmation of the categorical nature of the First Amendment rule against informal censorship is a very good thing, and it comes at a critical time. But it is imperative that the significance of the decision is properly understood. To that end, in the Article, I examine the muddled state of the doctrine prior to the decision, explain the significance of Vullo’s intervention, and explore its doctrinal and non-doctrinal implications going forward. The decision, I suggest, has profound implications for the continued vitality and independence of the democratic public sphere. But this will be true only if courts and others take steps to make the principles it announces meaningful.

Download the article from SSRN at the link.