A federal judge recently concluded that former US Attorney General Pamela Bondi and former Secretary of Homeland Security Kristi Noem likely violated the First Amendment by coercing Facebook to bar a discussion group and Apple’s App Store to jettison an application. Both banished targets in Rosado v. Bondi engaged in speech about the public activities of US Immigration and Customs Enforcement (ICE) officers.

If Judge Jorge Alonso’s preliminary injunction against the government eventually becomes permanent, it would mean that Bondi and Noem hypocritically embraced a brand of jawboning President Donald Trump vigorously condemned in an inauguration-day executive order (EO). Here’s what’s happening in Rosado and why it matters. 

Lawful Expression. Although Alonso hasn’t ruled on the merits, his April decision is significant. The Foundation for Individual Rights and Expression, which represents the plaintiffs, said it was “extremely encouraged by this ruling,” as “it bodes well for the future of our legal fight to ensure that the First Amendment protects the right to discuss, record, and criticize what law enforcement does in public.”

I previously explained that “more than a half dozen federal appellate courts recognize a First Amendment right to peacefully (and without interfering) record police officers working in public places.” The targeted speech in Rosado—discussions and public-venue images of ICE personnel—therefore is constitutionally safeguarded. It’s thus no wonder, as the Hoover Institution’s Eugene Volokh observed, that “the government didn’t even argue that [the] plaintiffs’ content fit within any First Amendment exception.”

Jawboning. Jawboning involves government officials indirectly censoring speech by verbally arm twisting third-party speech intermediaries—here, Facebook and Apple—to remove or deprioritize the First Amendment-protected expression of others. In Rosado, the “others” are: (1) Kassandra Rosado, who created a Facebook group (ICE Sightings—Chicagoland) to let “fellow residents of Chicago . . . share information about ICE sightings,” and (2) Kreisau Group LLC, which created an application (Eyes Up) that lets users “preserve and view videos of ICE activity across the country.” Their lawsuit alleges that:

Wielding the power of federal criminal law, [Bondi and Noem] coerced Facebook to disable Rosado’s Facebook group and coerced Apple to remove Kreisau Group’s Eyes Up app from its App Store. That’s unconstitutional. The First Amendment prohibits the government from coercing companies to censor protected speech.

Indeed, jawboning becomes illegal when public officials cross the line separating permissible persuasion from unlawful coercion. Justice Sonia Sotomayor recently explained for a unanimous Supreme Court that “[g]overnment officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” Coercion arises when an official’s statements “could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff’s speech.”

EO. Trump’s “Restoring Freedom of Speech and Ending Federal Censorship” EO complained about alleged jawboning by Joe Biden’s administration. It asserted that Biden officials “trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.”

Calling “[g]overnment censorship of speech . . . intolerable in a free society,” the EO pledged to “ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen.”

Ruling. Alonso largely based his ruling on Bondi and Noem’s “public statements taking credit for the fact that Facebook and Apple had removed,” respectively, the ICE Sightings—Chicagoland group and the Eyes Up application. The statements indicated to Alonso that the now-fired duo “reached out to Facebook and Apple and demanded, rather than requested, that Facebook and Apple censor Plaintiff’s speech.” (emphasis added).

For instance, Alonso quoted Bondi for the proposition that “We reached out to Apple today demanding they remove the ICEBlock app from their App Store—and Apple did so.” (emphasis in original). ICEBlock is another ICE-sightings application that’s suing Bondi over alleged jawboning that ICEBlock blames for its removal from the App Store. Alonso also cited “Noem posting on social media that ‘[p]latforms like Facebook must be PROACTIVE [sic] in stopping the doxxing of our [ICE] law enforcement.’” (italics added).

Professor Eric Goldman suggests that the “very public celebratory victory lap” taken by Bondi and Noem “after executing their censorship” with Facebook and Apple exposed the type of jawboning that typically remains behind closed doors and buried in emails. Why did they do this? Goldman proffers a solid hypothesis: They “needed to very visibly demonstrate their censorship in order for Trump to recognize and appreciate it.” If that’s the reality, then their public displays of devotion for “a single-person audience”—displays that ultimately got them nowhere professionally—may have performed an invaluable public service by exposing Trumpian free-speech hypocrisy.