March 18, 2024

Jawbone.

"One day Sampson was walking alone/He looked down on the ground and he saw an old jawbone/He lifted up that jawbone and he swung it over his head/And when he got to moving ten thousand was dead" — Peter, Paul & Mary.

"Oh, Jawbone, when did you first go wrong? Oh, Jawbone, where is it you belong?" — The Band.

From "Moral Suasion" (Wikipedia):
"Jawboning"... is the use of authority to persuade various entities to act in certain ways, which is sometimes underpinned by the implicit threat of future government regulation. In the United States, during the Democratic administrations of Presidents John F. Kennedy and Lyndon B. Johnson, officials tried to deal with the mounting inflationary pressures by direct government influence or jawboning.... 

From an amicus brief in National Rifle Association v. Vullo, one of 2 free-speech cases up for oral argument in the Supreme Court today:

In the early 1960s, the term “jawboning” entered the political lexicon to describe a government official’s ability to accomplish a similar feat of political strength—in this case stifling the speech and other advocacy of groups with disfavored views—through the seemingly innocuous tool of public statements. Derek E. Bambauer, Against Jawboning, 100 Minn. L. Rev. 51, 57 (2015) (defining jawboning and noting the term’s biblical origin). While Samson’s prowess on the battlefield of Lehi was considerable, his supernatural strength pales in comparison to the modern regulatory state’s power to smite the speech, stories, and ideas of the political philistines with whom it disagrees.

In the case at hand, however, jawboning takes on a new and even more dangerous dimension. In this case, the government officials at issue are not merely hinting at potential regulation if the regulated parties fail to police themselves satisfactorily, they are, like the black-listers of the McCarthy Era, seeking to remove disfavored individuals and organizations from public commerce, thus removing them from public debate. This is akin to wielding the jawbone of an ass in the digital age, where words and statements in highly regulated industries—like insurance and finance—can have far-reaching consequences.

This type of government blacklisting, ostensibly in the service of protecting companies and their investors from the dangers of reputational risks, is an even more potent threat to First Amendment freedoms when the government—as here—creates the reputational risk on which it premises its action. The government disingenuously expands its power to protect against the threats that it creates. This is like an insurance company engaging in arson to highlight the need for its products.... 
As the NRA notes in its brief, former Governor Andrew Cuomo has stated that “firearms advocates ‘have no place in the state of New York’” Pet’r’s Merits Br. at 8. Other New York public officials have been more blatant. New York Attorney General Letitia James has called the NRA a “criminal enterprise” and a “terrorist organization.” Jon Campbell, NY AG Letitia James Called the NRA a ‘Terrorist Organization.’ Will It Hurt Her Case?, USA Today (Aug. 19, 2020). On her Facebook page, current New York Governor Kathy Hochul has claimed that “The NRA is breaking the law and threatening the lives of New Yorkers.” See Governor Kathy Hochul, Facebook (Aug. 6, 2018).... 
These public officials are free to speak their mind about the NRA insofar as they do not engage in libel or slander. But the state’s attempt to remove the NRA from the banking and insurance system based on the “reputational risk” the state suggests to regulated entities and their investors, when coupled with this type of inflammatory rhetoric is beyond the pale.... 

26 comments:

James said...

In the Jack Reacher novels (now also including two movies and two seasons on Amazon, with a third on the way), the only time our titular hero was ever seriously injured in 13 years in the military was when he was stationed in Beirut, and a massive bomb explosion blew up a soldier and sent his jawbone one hundred yards through the air and into Reacher's abdomen. So even more weaponized jawboning.

n.n said...

Planned Parenthood (PP) for clinical progress, Planned Parent/hood (PP) for social progress, or Planned Personhood (PP) perchance rape for political function? Out, out dammed spot.

wild chicken said...

Trump jawboned the Fed to lower interest rates, so we had little room to maneuver when COVID hit.

Am I the only one who recalls this?

Mr. O. Possum said...

Great God Almighty, i's actually an old blues song. Rev. Gary Davis covered it.

https://singout.org/samson-and-delilah-if-i-had-my-way/

Kevin said...

But the state’s attempt to remove the NRA from the banking and insurance system based on the “reputational risk”

Why has it taken so long for this to be denounced and dealt with?

When politicians know it take years, or even decades, for the Supreme Court to rule their actions unconstitutional, what is left to discourage such actions that pay immediate political dividends?

The Vault Dweller said...

wild chicken said...
Trump jawboned the Fed to lower interest rates, so we had little room to maneuver when COVID hit.

Am I the only one who recalls this?


I don't specifically recall that but I feel like every president wants the Fed to lower interest rates while they are president. But given what happened with inflation during and after the pandemic, likely as a result of sharp increases in unemployment, yuge fiscal stimulus, as well as extraordinarily low interests rates, did we really want the Fed to lower interest rates during COVID?

When I hear the term jawboning, I always remember George W. Bush and his administration saying he would go and talk to the Saudis and jawbone down the price of oil. I'm not sure when he exactly made the statement and I can't find the exact quote online but when I search for it a lot of references to 2008 come up, which was during the 08 financial crisis linked to the housing market collapse. I remember this jawboning reference because his critics, properly, scoffed at the idea that "jawboning down the price," was good strategy to address at the time high oil prices.

Ficta said...

Rev. Gary Davis is great, but I think I like Blind Willie Johnson's version even more. The story is that he was once arrested for singing it ("If I had my way I'd tear this building down") in front of the Customs House. How's that for relevance to the news of today?

Wilbur said...

@ Unknown

I listen to the Blues Channel on Sirius radio some. I've noticed whenever the artist had "Blind" or "Reverend" in his name, the song is worth listening to.

I may start a career as Blind Reverend Wilbur.

Kirk Parker said...

How is it not slander or libel for government officials to claim an entity is committing a crime, or is a terrorist organization?

Dr Weevil said...

Ben Franklin's greatest poetical work alludes to the jawbone of an ass without naming it:

Jack, eating rotten cheese, did say,
"Like Samson I my thousands slay."
"I vow", quoth Roger, "so you do,
And with the self-same weapon, too!"

If you think that's not all that great a poem, you should see the other ones.

Big Mike said...

@James, that’s because in the stories, Reacher was an MP and MPs are generally regarded as noncombat troops. Though things can get “interesting” for MPs — as the story of First Sergeant Leigh Ann Hester demonstrates.

@wild chicken, low interest rates are the only reason some firms made it through COVID.

Roger Sweeny said...

"Great God Almighty, i's actually an old blues song. Rev. Gary Davis covered it."

As did the Grateful Dead:

https://www.youtube.com/watch?v=RMwTK6IgXUo

J said...

Whoever wrote that song got the story wrong.

tim in vermont said...

Mark Zuckerberg himself -- knowing that all of this evidence was to be imminently released -- complained about the constant stream of censorship pressure from the Biden WH, noting that FB was forced to censor not only debatable claims but ones that *turned out to be true* - Glenn Greenwald

https://twitter.com/ggreenwald/status/1684922334354849793

Mark said...

Reverend Gary Davis just rolled over in his grave.

Grateful Dead played that song for me a couple of times, Jerry seemed to have fun every time with it.

J said...

See Judges 15.What do we call intentional distortion of easily checked stories?

mikee said...

Is the jawbone of an ass any better at persuasion than the jawbone of a hog?

The Vault Dweller said...

Blogger Kirk Parker said...
How is it not slander or libel for government officials to claim an entity is committing a crime, or is a terrorist organization?


Governments are only liable for the misdeeds they allow themselves to be liable for.

Rabel said...

"Trump jawboned the Fed to lower interest rates"

True that they lowered in 2019 (three .25% reductions - from 2.5% to 1.75%), but due to a concerns about a slowing economy, not the jawboning.

"so we had little room to maneuver when COVID hit."

Nonsense. Look at the numbers. You're saying that the .75% they gave up in 2019 would have made a significant difference in 2020 when they lowered by 1.5% and took the rate to near zero.

Just more anti-Trump propaganda that you've absorbed.

Link

Howard said...

This is a lovely cover storyline for to distract the eyes from Wayne La Pierre using the NRA for his personal checking account.

Send Money Suckers!!!!

Hassayamper said...

This is a lovely cover storyline for to distract the eyes from Wayne La Pierre using the NRA for his personal checking account.

You can't be serious. LaPierre is a grifter and scoundrel, and I am glad to see the back of him, but his individual venality is insignificant next to the prospect of biased government officials using the powers of their office for extrajudicial persecution and punishment of organizations engaged in lawful public advocacy and political participation. This is official oppression under color of law if anything ever was, and the enemy scum in New York State who did it should die in prison.

TickTock said...

Hey Ann. Is the instruction immediately above your comment section "The non-name "unknown" is not accepted." no longer an operable requirement?

Lucien said...

As famous peacenik Winston Churchill remarked “Jaw jaw is better than war war”.

Rich said...

There are very real concerns about where the line is between government coercion (not allowed) and government persuasion (allowed) on speech. Sometimes this is referred to as the legality of “jawboning” as Althouse writes.

Knight First Amendment Institute at Columbia University
https://knightcolumbia.org/blog/channel/jawboning

I tend to think that government officials are all too often allowed to get away with jawboning that I think crosses the line. And this is a bipartisan problem, as government officials on both sides of the aisle seek to silence or punish speech they dislike. It would be great to have the Supreme Court set out a clear rule for how to deal with such things, and to establish where the line is.

john mosby said...

Winston Churchill said jaw-jaw is better than war-war.

(It rhymes better with a posh accent)

JSM

Leora said...

I always thought jawboning just meant trying to convince people by talking to them. Never connected to Samson and his violent use of the ass's jawbone.