At the time of America’s Founding, the people exercised their First Amendment rights of expression through pamphlets and periodicals; in the 21st century, the people more often exercise such rights online. Regrettably, the government sometimes responds to the exercise of these First Amendment rights by attempting to silence unwanted speech through jawboning. For example, government actors recently jawboned ABC and its affiliates — they tried to suspend Jimmy Kimmel’s show through threats of government action. In short, jawboning occurs when a government official threatens to use public power to silence speech.

In this case, Federal Trade Commission personnel have jawboned Media Matters, a nonprofit media company, by threatening retaliation for an article it published in 2023. In that article, Media Matters reported that “ads appeared next to pro-Nazi content on X.com.” In response, Elon Musk promised to file “a thermonuclear lawsuit against Media Matters.” Mr. Musk’s suits have been unsuccessful, but others took up the mantle. Attorneys General attempted to issue civil investigative demands (CID) to Media Matters. President Trump also appointed a vocal critic of Media Matters to be the new FTC Chairman; he then issued a CID to Media Matters. Media Matters sued the FTC for this retaliatory CID.

The district court agreed with Media Matters and preliminarily enjoined the FTC. The FTC appealed to the U.S. Court of Appeals for the D.C. Circuit. Cato has filed an amicus brief in support of Media Matters.

In our brief, we outline the historical role of the First Amendment and the freedom of the press that it protects. Since the Founding, our courts have advanced press freedoms, and the First Amendment has evolved to protect the people from jawboning.

Although jawboning violates the First Amendment, the Supreme Court has not laid out a clear framework that identifies it. We argue that the court should use Justice Alito’s framework from his Murthy dissent so as to focus on the public officials’ authority, the statements they have made, and the reaction of those who have been jawboned. However, even if the Court uses an alternative approach — the holistic approach of Vullo — both methods result in the same conclusion: the FTC’s actions are unconstitutional.

We conclude that the D.C. Circuit should affirm the lower court’s decision and uphold the First Amendment. When federal agencies attempt to chill speech and dilute the Constitution’s guarantees, they should face consequences.