Enforcing the First Amendment in an Era of Jawboning
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 the informal exercise of 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 recent decision in NRA v. Vullo should end this division. In Vullo, the Court held 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 the rule against this kind of informal censorship is a categorical one: Officials may never attempt to evade constitutional constraints on their power by threatening harm or promising benefits to private parties, no matter how severe, or insignificant, the harm or benefit they promise may be, or how effective. 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, the Article examines the muddled state of the doctrine prior to the decision, explains the significance of Vullo’s intervention, and explores its doctrinal and nondoctrinal 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 as well as other government institutions take steps to make the principles it announces meaningful.