Against Jawboning and Outrageous and Irrational

Volume 100 of Minnesota Law Review has just been published. “Against Jawboning” is in the first issue, along with co-blogger / spouse Jane Bambauer, whose article “Outrageous and Irrational” is co-authored with constitutional law / First Amendment expert and friend Toni Massaro. Minnesota LRev continues to be one of the top venues for publishing information law scholarship, and we’re grateful for their support for the articles. Abstracts below:

Against Jawboning

Despite the trend towards strong protection of speech in U.S. Internet regulation, federal and state governments still seek to regulate online content. They do so increasingly through informal enforcement measures, such as threats, at the edge of or outside their authority—a practice this Article calls “jawboning.” The Article argues that jawboning is both pervasive and normatively problematic. It uses a set of case studies to illustrate the practice’s prevalence. Next, it explores why Internet intermediaries are structurally vulnerable to jawboning. It then offers a taxonomy of government pressures based on varying levels of compulsion and specifications of authority. To assess jawboning’s legitimacy, the Article employs two methodologies, one grounded in constitutional structure and norms, and the other driven by process-based governance theory. It finds the practice troubling on both accounts. To remediate, this Article considers four interventions: implementing limits through law, imposing reputational consequences, encouraging transparency, and labeling jawboning as normatively illegitimate. In closing, it extends the jawboning analysis to other fundamental constraints on government action, including the Second Amendment. This Article concludes that the legitimacy of informal regulatory efforts should vary based on the extent to which deeper structural limits constrain the government’s regulatory power.

Outrageous and Irrational

A wealth of scholarship comments on enumerated and unenumerated fundamental rights, such as freedom of speech, the right to marital privacy, and suspect classifications that trigger elevated judicial scrutiny. This Article discusses the other constitutional cases—the ones that implicate no fundamental right or suspect classification, but nevertheless ask for relief from uncategorizable abuses of power. These cases come in two forms: claims that the government’s conduct is outrageous (satisfying the “shocks the conscience” test), or claims that the government’s conduct is irrational (failing the rational basis test). Both forms trigger highly deferential judicial review and serve similar purposes. But they are on divergent trajectories. Courts have cautiously expanded use of the rational basis test in contexts as varied as gay marriage, hair braiding, and coffin sales. The outrageousness test, by contrast, is universally maligned and mistrusted.

We explain and vindicate both tests. We argue that the very features that attract reflexive scorn—their vagueness and flexibility—have a counterintuitive, normative, and practical beauty. They allow courts to occasionally strike down egregious abuses of power without expanding other constitutional rights. They allow limited judicial experimentation before introducing new rights or adding classifications to elevated scrutiny, enabling courts to reach results that have little doctrinal impact beyond their narrow facts. Thus, contrary to their reputations, the tests promote judicial restraint and preserve constitutional coherence.

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