Felagund
3mo ago
True, these are relevant details. My gut is that since appointments are a constitutionally provided thing, and the statute is merely federal law, they couldn't be stopped from appointing people, nor would their appointments be dependent on the validity of the statute. But I really don't know; good point about a stay.
Felagund
3mo ago
We don't have any proposed text. It would all be up to how they design it exactly.
Felagund
3mo ago
It's not that long of a shot. Manifold puts it at a 65% chance of happening, should they get a trifecta, which is not too unlikely either. It's entirely possible that I've been overstating things, but it's at least likely enough that it should be on our radar as a danger.
Yes, it is of course less likely than Trump being reelected.
Additionally, this catastrophozing has the exact same crunch as the people who cried over Jan 6th, calling the participants traitors.
Therefore, until we have a text that actually states how it would work, there is really no point in debating exactly what would happen.
I don't follow your reasoning here.
Additionally, if I was so concerned about this, the solution would simply be to make sure to win and get justices in that will give rulings I want on a consistent basis. That would necessarily require making sure my party continues to get elected.
Similar to how the "fix" to project 2025 for Democrats, should it succeed, is to make sure you win the follow-up elections.
Do I read you correctly as saying that if this happens, and you win later, you can just install a slate of new justices, and there's no real harm?
If so, I disagree. The role of the federal judiciary shouldn't be a political tool, but should be to faithfully interpret the law and decide cases brought before it. I don't want yes-men on the court, I want men who will faithfully execute their constitutional office. Repeatedly expanding the court or modifying what it could do would, I imagine, tend to increase how much those present are motivated by partisanship. The Supreme Court is in the present moment the only branch that's making any real effort to hold the government to what the Constitution says. Seriously weakening that would be bad.
Felagund
3mo ago
Constitutionally, there's nothing specifying 9 seats. That's only by statute and convention. In the senior justice model, they don't actually lose their seat, just the ability to do anything useful with it. There wouldn't be anything stopping Congress from appointing more justices except norms.
I imagine there would be a constitutional challenge—no idea how Alito, Roberts, Thomas would be treated in the mean time. I'll assume the court rules it's unconstitutional, though I'm not sure whether they would. It would still be the case that any new justices appointed would remain. The main advantage that any swift challenge would bring would be to make it obvious to everyone that they'd be court-packing, making it politically harder to appoint more justices.
Supreme Court Term Limits
In a thread recently a bunch of you considered the Biden Supreme Court term limits proposal not that bad. Steven Calabresi just wrote a piece on just how radical and worrying it is. I'd realized things were bad, but not how bad.
Let's set aside the minor things I was talking about before, like how the proposal would lead to two new justices each term in a way that would increase how politicized the court is. Those are dwarfed by Calabresi's concerns.
One thing I hadn't sufficiently thought about is the effects of this being a statutory and not constitutional proposal. The chief one, of course, is that they only need to get a trifecta, not a supermajority, to pass the bill. Well, how likely is that? Manifold puts it at a 21% chance of a democrat trifecta. And if that happens, there's a 65% chance they end lifetime appointments. If I can multiply, that's about a 14% chance of this happening. I assume themotte is numerate enough to realize that for sufficiently important events, that's really high.
Okay, so what would happen? Unfortunately, we don't actually have a draft bill on hand. What we know is that this proposal would add a justice to the court every two years, with 18 year terms. There are two problems with this, as stated: first, it's blatantly unconstitutional, and second, how do you get this to combine with the current system?
It would be unconstitutional because the Constitution provides for "in good behavior." Calabresi clarifies that under British law this would mean "life, unless you commit felonies," and in the context of the American Constitution would be likely to require impeachment. In order to evade that (recall, they do not plan for an amendment), they are likely to have them graduate to some nominal title like "senior justice" with basically no power (maybe still let them play a role in the "which state gets the water rights" disputes, but not anything else), because the Constitution gives Congress power to shape appellate jurisdiction.
The second issue is how to start this up. The way that has only minor harms is that they could make the limits start only for future justices. Maybe each seat switches to 18 year terms after the current inhabitant resigns or dies, with the term already partway through to align with the biennial appointments. But let's face it, there's no way they choose this. Their concerns lie entirely with the current court; the term limit proposal is merely a nice-looking vehicle to attack them through. It would make no sense for them to ignore the reason that they're passing this. What they'd actually do is immediately phase out people as soon as they reach 18 years. That would mean Thomas, Alito, and Roberts would be immediately gone. They would then promptly replace them with three new rubber-stamp progressives.
I imagine the court may well, when it would first have the opportunity, strike down the stripping of jurisdiction as unconstitutional. I'm not sure. But that wouldn't get rid of the three new justices just installed. The court would then sit at 6-6 (with, I imagine, the conservatives being significantly more willing to break ranks than the liberals). The first expansion of the court since the 9-justice court was established in 1869. This is the first serious threat at court packing in nearly a century, when FDR pushed for it. (I wish some amendment to stop court packing had been passed during the good while when it was uncontroversial.)
Of course, Republicans would, upon gaining their own trifecta however many years later, promptly then adjust the rules to their liking. The net result of this will in the long term be the end of the independence of the federal judiciary, seriously harming things like equality before the law. So much for caring about democracy and so forth.
Will this happen? Probably, if they get the chance. Sinema and Manchin will both be gone, so there's not much risk of filibusters surviving. Posing it as being about term limits, instead of court-packing, dramatically lowers how radical it seems, making them more likely to do it. And 36 senators have already signaled that they are already willing to substantially mess with the court by proposing the No Kings Act, so it's well within the Overton window. No chance Kamala is more moderate on all this than Biden is.
Okay, well, what can stop this disaster? The main things are: hold onto the Senate, hold onto the presidency, or get moderate democratic Senate candidates to say they won't go along with it. The last is tricky to do rhetorically ("term limits" sound good, as seen by the positive reception it got here). So it's not the easiest to convey that the democrats are now the party threatening our system of government. The easiest way currently is to win in the Senate. The Democrats have to basically hold onto every seat, including those in red states. Unfortunately, they have a moderately high chance of doing so, but Montana's Jon Tester, at least, has a greater than 50% chance of losing his seat. Should these fail, I hope one of the liberal justices can be convinced to break the usual custom against political advocacy to speak about how bad an idea this is. I'd also try convincing Obama to come out against it, if there's any way to do so, as he holds influence without (I imagine) being quite as scrutinized and purity-tested and generally pressured by whatever the current left-wing discourse is pushing.
As a final note, the No Kings Act is also pretty radical—stripping jurisdiction in immunity cases from the Supreme Court (leaving it at the circuit courts), and instructing Federal courts to ignore any presidential immunity. No way is that last part constitutional, and would even more quickly lead to the destruction of the federal judiciary and end of separation of powers, as (if allowed, which, they're also trying to make it logistically difficult to challenge), with the floodgates opened, acts of this form would be increasingly used to force the courts to do whatever the current congress feels like.
A terrible dereliction of their oaths to support the constitution, on the part of the democrats who support all this, and revelatory that all their claims about the importance of protecting our system of government and its norms has the enormous asterisk that they'll destroy it all, if they're inconvenient.
Felagund
3mo ago
In the steelman justification, the harms are putting less competent people in positions of responsibility because of unconscious biases in their favor. Steelman affirmative action aims to counteract these unconscious biases to make sure that the most competent people are chosen instead. To my great surprise, most affirmative action I've personally seen in professional contexts has been very close to this steelman version, though it is definitely plausible that I've been in very non-representative bubbles.
I'll take your word for it. Thanks for the conversation!
Felagund
3mo ago
I take it you're on team Alito, then.
This gets cloudier when it's an algorithm that's deciding what to show you, or at least what to prioritize. Does that affect your analysis at all?
Felagund
3mo ago
I finally got around to the last case (well, except for the early ones before I started doing these, which I have no intention of returning to):
Moody v. Netchoice and Netchoice v. Paxton
9-0, as to judgment; 6 is the most any one opinion gathers, with Kagan writing, joined by Roberts, Sotomayor, Kavanaugh, and Barrett, and in part, Jackson.
Alito writes for the other three. Thomas, Barrett, and Jackson all write additional opinions.
The case concerns two laws passed in 2021 regulating internet entities, one from Florida, and one from Texas. The laws restricted content moderation, and required explaining the reasoning behind content moderation restricting users. Netchoice is suing that these violate the first amendment. Netchoice is a trade association containing a whole host of large social media companies—Google, Etsy, Twitter X, and a whole host more—that exists, it seems, largely to lobby or combat laws like the two passed.
In both cases, Netchoice sought preliminary injunctions, and in both cases they were granted by the district court. The Eleventh Circuit held that the platforms' decisions were constitutionally protected speech, and accordingly found that the moderation and disclosure requirements were unconstitutional (the latter because it is too burdensome), with the sole exception of the requirement in Florida's laws that the platform disclose the content moderation policy in general (as opposed to in specific cases). The Fifth Circuit held that NetChoice did not try to show it unconstitutional in all applications, held that the restrictions on moderation were not regulating the Platforms' speech, and upheld the disclosure requirements, both general and particular, due to Zauderer having ruled that it was permissible to compel factual information.
The Supreme Court here unanimously agrees that the cases need to be remanded, as courts did not adequately consider that these were facial challenges—that is, that they must consider the law in general, rather than as applied to the plaintiffs. The laws are broad, and they were only addressed narrowly.
I'll start with the smaller opinions this time.
Barrett concurs. She briefly notes at the outset that she agrees with the court that the Eleventh Circuit (which struck down the Florida law) correctly stated 1st amendment precedent, whereas the Fifth circuit (which upheld the Texas law) did not. The remainder of her concurrences emphasizes that this indicates the difficulties of bringing a facial rather than an as-applied challenge. She notes the various difficulties in evaluating these, even were it only as-applied: the first amendment only protects expressive activity. Are decisions made by AI expressive? Further, what if the corporation is located overseas, and so not entitled to First Amendment rights? Considerations like these would more fittingly be applied in specific cases, instead of attempting to evaluate it all in a single facial challenge. So she would prefer they bring it as-applied.
Jackson concurs in part. She thinks that it is generally clear that some things a social media company may do are protected by the first amendment, and others are not, but it is hard to say more here. She agrees with Barrett that the Eleventh Circuit "at least fairly stated" the First Amendment precedent, whereas the Fifth Circuit did not. But, like the whole court, she agrees that they need to reevaluate it in light of it being a facial challenge. Jackson states that the question, in evaluation of this, is not whether corporations as a class, or a particular corporation, is acting constitutionally, nor even whether, e.g. content moderation fits precedent, but it depends on the way that the activities actually function regarding whether they constitute expression. Jackson would decline to look at the ruling on the merits as-applied to the companies, and hence she only joins three parts of the majority opinion: I (the history of the cases), II (the analysis of it being facial, and so requiring remand), and III-A (the account of the first amendment precedent). It seems she does not join Kagan's application of that precedent to these cases.
Thomas concurs in the judgment. He disagrees with the court's decision to give opinions on the applications of those statutes, as this involves some of the same sorts of analysis that they complained about—looking at specific cases, instead of the broad range. He agrees with Alito's analysis. Thomas first notes two additional considerations: the Courts depend on Zauderer, which stated that "laws requiring the disclosure of factual information in commercial advertising may satisfy the First Amendment if the disclosures are reasonably related to the Government's interest in preventing consumer deception." In classic Thomas fashion, he thinks that should be reconsidered, citing an opinion from himself fourteen years prior. Secondly, he notes that he thinks the lower courts should continue to be guided by the common carrier doctrine, which have certain requirements, especially, service of all comers, and that there is historical precedent for regulating transportation and communications networks like traditional common carriers. (Again, citing his past opinions.) The lower courts addressed this in their analysis previously; they should continue to do so, though that cannot really be feasibly be done under a facial analysis.
With that prelude aside, Thomas turns to the main portion of his concurrence, where he argues that facial challenges violate the command of article III. Article III gives courts the power only over "cases" and "controversies." In such particular cases and controversies, it is the place of the courts to say what the law is, but only in those cases. This is necessary to confine the courts to a judicial role. Facial challenges conflict with this because they ask whether statutes constitutionally conflict in cases not before the court. Facial challenges require that no set of circumstances exist under which it would be valid, or in the case of the First amendment, the looser standard that it has prohibits too high of a ratio of protected:plainly unprotected speech. Facial challenges thus ask courts to issue decisions that are unnecessary to decide some particular case or controversy. Plaintiffs are required to show that they personally have suffered an actual or threatened injury, and must be given a remedy that is limited to the injury. Accordingly, the case is done once they have decided whether it is legitimate as-applied. Deciding whether it would be legitimate as applied to other plaintiffs is not necessary, and should be considered as no more than an advisory opinion, which should not be issued. Facial challenges allow challenging applications of statutes that have not injured him, which is ordinarily disallowed. They also allow enjoining of applications of statutes which have nothing to do with his injury, which is not how redressability is supposed to work, and like a universal injunction, which is itself problematic (citing himself and Gorsuch). Facial challenges further intrude upon powers reserved to the Legislative, the Executive, and the States. They allow for the review of constitutionality of applications of a statute before even it has been enforced, giving courts "a general veto power" upon the legislation of Congress, but the Judiciary has no constitutional role in lawmaking. As-applied challenges minimize intrusion. This leaves the Executive branch free to enforce it in other applications. Facial challenges, on the other hand are maximalist, leaving the other branches with no opportunity to correct things, harming the democratic nature of the government. Moreover, facial challenges can prevent the application of state laws in its particular cases, and usurp power from state courts, contrary to the 10th amendment.
Facial challenges also create practical problems. They harm the adversarial system, by allowing plaintiffs to present a challenge without direct knowledge of how the case might apply to others, and so often depend on speculation.
As applied to these cases, the state officials had no opportunity to tailor the enforcement of the laws, nor state legislatures to amend the statutes prior to their enjoinment, nor state courts to interpret the law. Rather federal courts, with little factual record, did. Thomas notes that some blame here is because of associational standing (e.g. NetChoice, instead of the constituent entities) mucking things up—he opposed associational standing in his concurrence over mifeprestone earlier this year—but the facial nature also plays a role in that. The task before them is impossibly complex.
They are also suspect in their origins, being a result of vagueness and overbreadth. At the time of the founding, the courts correctly understood themselves to only decide particular cases or controversies. The founders four times rejected creating a council of revision, which would evaluate and reject statutes, untied from a case. The narrow understanding of what the court could do was generally adhered to for over a century. The first change to this was the development of vagueness—courts began in 1914 to strike down statutes as unconstitutionally indefinite. In 1940, in the First Amendment context, they struck down a statute as "invalid on its face," as it was a "sweeping proscription of freedom of discussion." The court has never justified this overbreadth doctrine in text and history, "just policy considerations and value judgments." This eventually spread elsewhere, without textual or historical justification. Thomas concludes that the court should put an end to facial challenges.
Enough of the minor opinions, now to the two major ones.
Kagan writes for the majority. After introducing and giving the history of the cases (recall: 5th circuit upheld the law, the 11th circuit struck it down), she addresses the facial nature of the case. The court has made facial cases hard to win, ordinarily requiring showing that they are invalid in every application. It is still difficult even in First Amendment cases, like the present one, where the challenger must show that "a substantial number of the law's applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." But both parties thus far have only been considering them in more narrow applications (like Facebook's news feed), instead of the full range of applications (Among others, is direct messaging covered? Gmail filters? Etsy reviews?). And then it must be considered whether those applications violate the First Amendment: in the case of the content-moderation provisions, whether it intrudes on protected editorial discretion. Regarding individualized-explanation provisions, whether the disclosures unduly burden expression. These issues have not been considered, so they vacate and remand.
Then: "It is necessary to say more about how the First Amendment relates to the laws' content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below," and this is especially needed for the Fifth Circuit, as otherwise, it would just decide the same way, as it wrongly held that they were not speech at all, and wrongly treated Texas' interest as valid.
In essence, Texas' law requires carrying or promotion of speech, when the platforms would rather do the opposite. The platforms argue that this requires changing their expression, and the Court has held in the past that expression includes curation of speech by others. The precedents: In Tornillo, the Court held a law requiring newspapers give candidates the right to reply to criticism violated the First Amendment, in forcing them to print what they would otherwise not. In Pacific Gas & Elec. Co., a utility company distributed views on energy policy in its billing envelopes, the state required including inclusion of material from a different perspective, and the Court sided with the company, as it was not required to carry speech it disagreed with. In Turner I, they held that rules requiring cable operators to allocate channels to local broadcast stations involved the First Amendment. (Even though they eventually decided it was worth restricting anyway in Turner II.) In Hurley, they decided that a parade was free to decide who to admit. On the other hand, they allowed compelled access in two cases: in Pruneyard, they permitted a law compelling a mall to allow people to distribute pamphlets. And in FAIR, they permitted which compelled law schools to allow the military to recruit on campus. In both of these, it was understood that these did not affect expression of the party.
From that can be drawn three principles: The first amendment protects those who compile speech when they wish to exclude some. Secondly, this includes when they exclude just a few items. Third, the government cannot merely assert an interest in balancing the marketplace of ideas.
Things like Facebook's News Feed involve removing or prioritizing content. This is like the cases before, and so is protected. Texas's law thus is problematic. This does not change by the fact that they allow most speech through. Nor does the fact that users can easily tell that it is the users speaking, not the platform, change anything.
Texas' stated interest does not work—promoting ideological balance among private actors is not a legitimate government interest, as it is inherently censorious.
The remaining major opinion is that of Alito:
Alito opens, in the very first paragraph of his introduction, by stating that everything except the facial unconstitutionality of the case is nonbinding dicta. That is, most of Kagan's opinion is extraneous to the matter decided then, can be dismissed, and is of no precedential value. He agrees that it needs further examination as to whether it is facially unconstitutional. But they should not have gone further.
Alito proceeds to a lengthier discussion of the state laws and history of the two cases before they came to the Supreme Court. Then he turns to the facial nature of the challenge: these are strongly disfavored, and conflict with several principles—they clash with the general principle of not reaching beyond what is needed in court decisions, are antidemocratic, and "strain the limits" of the constitutional authority to decide "cases" and "controversies." Accordingly, the requirements are demanding—generally speaking, it fails wherever there is any "plainly legitimate sweep" to the statute. Netchoice asks that this standard not be applied. This is wrong, as the states have asked for the rules of a facial challenge to be applied, and even were it not the case, they would still be necessary for the courts to follow. Netchoice chose to make a facial challenge; now it must deal with the consequences of that choice.
Alito then turns to whether NetChoice manage to show that it is facially constitutional. He begins by reviewing. The First Amendment protects freedom of speech, which usually involves government efforts to forbid, restrict, or compel expression. But some cases have included presenting an edited compilation for the purpose of expressing a message. But not every compilation is expressive. Accordingly, the First Amendment only protects expressive compilations. To show that a compilation is expressive, they must first show that they exercise editorial discretion, and are not, for example, "dumb pipes" that return whatever is put in. This may vary within the same entity, even—newspapers often will exercise far less discretion in advertisements, which may make a meaningful first amendment difference, or a parade might ordinarily only select groups, and not individuals. (Contra the majority, it can matter how much they include vs. exclude, depending on their methodology.)
Additionally, the compilation must be expressing some (often abstract) point. Chronological organization, for example, isn't really expression. It was for this reason that in PruneYard they were willing to compel a mall to host third-party speech.
Third, they must show that their speech is affected by the speech it would be compelled to accommodate. In PruneYard and FAIR they held that the government could compel speech, because speech in those cases was not expressive.
After it has been shown that the first amendment applies, it then has to be shown that the regulation "violates the applicable level of First Amendment scrutiny"—as in Turner, where they decided that it did involve the first amendment, but nevertheless, the government prevailed. Here, they assert an interest in fostering a free and open marketplace of ideas, as well as preventing discrimination against people who live in Texas, which Alito considers compelling interests.
Netchoice failed to meet this burden. First, it did not establish which entities were affected, which make it difficult to know whether a facial challenge should succeed (might it cover websites like WhatsApp that act more like passive receptacles, without curation, and so be legal at least in those cases?). Second, it did not say what kind of content appears, which might be relevant for the first amendment (e.g. is it political? That might matter). Third, it does not show how they moderate. Reddit outsources moderation, which makes it arguably not reddit's speech.
The majority spends much of its opinion specifically talking about how this would apply to the Facebook newsfeed or youtube homepage. Alito points out that this might not even be needed—the fifth circuit can decide on other grounds. He disagrees with their characterization of it as expressive, as they have not revealed how their algorithms were created or work. And they do not consider whether they should be common carriers. And it is not so obvious that what these platforms do in their curation is the same as what editors do—massive scale, post hoc removal, AI algorithms. It also remains to be considered whether "network effects" make any difference. (I'm a little surprised they didn't mention Turner II here, which allowed the government to mandate cable networks carry local stations, despite recognizing that there were first amendment concerns, as otherwise they'd be shut out of the market). He thinks all of these should be resolved in a future as-applied challenge.
Turning to the disclosure questions (saying why messages were censored), they must, under Zauderer, not unduly burden speech. That's hard to know in a facial challenge, and even in the case of YouTube, it doesn't seem like that huge of a burden. This is especially the case for companies that already have to do all that anyway under an EU law.
Let's analyze this in a different direction, by issue.
Should this be remanded due to the facial nature of the challenge? 9-0.
Was the 5th circuit's analysis of editorial discretion problematic? Gorsuch, Alito, and Thomas do not explicitly say; the other 6 are clear that it erred.
For that reason, should the court give further guidance? 5-4 (Alito, Gorsuch, Thomas, Jackson in the minority)
Is the risk of misattribution sometimes the decisive factor as to whether it is protected speech? 5-3, against Gorsuch, Thomas, Alito. (Jackson gives no indication)
Is it ever relevant whether a compiler includes most items and excludes only a few? 6-3, against Gorsuch, Thomas, Alito.
Is an interest in improving or balancing the marketplace of ideas legitimate to compel speech? 6-3, against Gorsuch, Thomas, and Alito.
Does Netchoice's failure to establish which entities are covered mean it fails to show the laws are facially invalid? 9-0.
Is it meaningful that Netchoice has not shown how (delegation of moderation to third parties, like reddit, or the use of algorithms instead of human judgment) it moderates content? At least 5 agree: Alito's opinion, Jackson's (she specifically highlights it), and Barrett's.
Thomas, Gorsuch, and Alito think that the court should at least have addressed the common carrier argument. They also are concerned that there may be further concerns and important differences between editing a newspaper vs. moderating a social media site (size, network effects, algorithmic vs human moderation).
Some additional thoughts:
People, especially on the left, think of Thomas and the court as corrupt. Aside from the extent to which that is bolstered by politically motivated slander, I don't think they realize that Thomas wants to constrain judicial power, seeing its current state as beyond constitutional bounds. Compare to the complaints of Jackson in Trump v. United States, released on the same day, that the court was expanding its own power. And it isn't unique to this case; he's also expressed doubts about certain conventional forms of standing, and a few other sorts of things. I'd imagine Gorsuch concurs with Thomas on a lot of this, though not on everything he said (e.g. I don't think Gorsuch is much of a fan of prosecutors tailoring laws being important, due to fair notice concerns—it's not good, and unfair to the citizenry, to have a bunch of broad laws erratically enforced).
All of these opinions depended heavily on precedent. I have no idea what originalist methodology would say here.
I also don't think I got a sufficiently clear view from either party as to what constitutes expression and what does not. Nor do they really deal with common-carrier questions, which are very relevant, I think.
There have been revelations (though some already speculated before the release of those) that Alito originally had the majority in this case, with Barrett and Jackson siding with him, but they eventually left.
Practically speaking, I'm not sure what's the best policy-wise. With the acquisition of Twitter, it doesn't feel like conservatives are at quite as much of an ideological disadvantage. It seems risky to allow government intervention in speech. I also don't know about jurisdictional questions—does it make sense for states to be able to regulate a shared platform? What if they do so in different directions? Might those who believe in the dormant commerce clause (that is, states being unable to regulate interstate commerce) think it applies here?
…you're probably right. I've posted it. I added a little more to the final thoughts.
Felagund
3mo ago
Moody v. Netchoice and Netchoice v. Paxton
9-0, as to judgment; 6 is the most any one opinion gathers, with Kagan writing, joined by Roberts, Sotomayor, Kavanaugh, and Barrett, and in part, Jackson.
Alito writes for the other three. Thomas, Barrett, and Jackson all write additional opinions.
The case concerns two laws passed in 2021 regulating internet entities, one from Florida, and one from Texas. The laws restricted content moderation, and required explaining the reasoning behind content moderation restricting users. Netchoice is suing that these violate the first amendment. Netchoice is a trade association containing a whole host of large social media companies—Google, Etsy, Twitter X, and a whole host more—that exists, it seems, largely to lobby or combat laws like the two passed.
In both cases, Netchoice sought preliminary injunctions, and in both cases they were granted by the district court. The Eleventh Circuit held that the platforms' decisions were constitutionally protected speech, and accordingly found that the moderation and disclosure requirements were unconstitutional (the latter because it is too burdensome), with the sole exception of the requirement in Florida's laws that the platform disclose the content moderation policy in general (as opposed to in specific cases). The Fifth Circuit held that NetChoice did not try to show it unconstitutional in all applications, held that the restrictions on moderation were not regulating the Platforms' speech, and upheld the disclosure requirements, both general and particular, due to Zauderer having ruled that it was permissible to compel factual information.
The Supreme Court here unanimously agrees that the cases need to be remanded, as courts did not adequately consider that these were facial challenges—that is, that they must consider the law in general, rather than as applied to the plaintiffs. The laws are broad, and they were only addressed narrowly.
I'll start with the smaller opinions this time.
Barrett concurs. She briefly notes at the outset that she agrees with the court that the Eleventh Circuit (which struck down the Florida law) correctly stated 1st amendment precedent, whereas the Fifth circuit (which upheld the Texas law) did not. The remainder of her concurrences emphasizes that this indicates the difficulties of bringing a facial rather than an as-applied challenge. She notes the various difficulties in evaluating these, even were it only as-applied: the first amendment only protects expressive activity. Are decisions made by AI expressive? Further, what if the corporation is located overseas, and so not entitled to First Amendment rights? Considerations like these would more fittingly be applied in specific cases, instead of attempting to evaluate it all in a single facial challenge. So she would prefer they bring it as-applied.
Jackson concurs in part. She thinks that it is generally clear that some things a social media company may do are protected by the first amendment, and others are not, but it is hard to say more here. She agrees with Barrett that the Eleventh Circuit "at least fairly stated" the First Amendment precedent, whereas the Fifth Circuit did not. But, like the whole court, she agrees that they need to reevaluate it in light of it being a facial challenge. Jackson states that the question, in evaluation of this, is not whether corporations as a class, or a particular corporation, is acting constitutionally, nor even whether, e.g. content moderation fits precedent, but it depends on the way that the activities actually function regarding whether they constitute expression. Jackson would decline to look at the ruling on the merits as-applied to the companies, and hence she only joins three parts of the majority opinion: I (the history of the cases), II (the analysis of it being facial, and so requiring remand), and III-A (the account of the first amendment precedent). It seems she does not join Kagan's application of that precedent to these cases.
Thomas concurs in the judgment. He disagrees with the court's decision to give opinions on the applications of those statutes, as this involves some of the same sorts of analysis that they complained about—looking at specific cases, instead of the broad range. He agrees with Alito's analysis. Thomas first notes two additional considerations: the Courts depend on Zauderer, which stated that "laws requiring the disclosure of factual information in commercial advertising may satisfy the First Amendment if the disclosures are reasonably related to the Government's interest in preventing consumer deception." In classic Thomas fashion, he thinks that should be reconsidered, citing an opinion from himself fourteen years prior. Secondly, he notes that he thinks the lower courts should continue to be guided by the common carrier doctrine, which have certain requirements, especially, service of all comers, and that there is historical precedent for regulating transportation and communications networks like traditional common carriers. (Again, citing his past opinions.) The lower courts addressed this in their analysis previously; they should continue to do so, though that cannot really be feasibly be done under a facial analysis.
With that prelude aside, Thomas turns to the main portion of his concurrence, where he argues that facial challenges violate the command of article III. Article III gives courts the power only over "cases" and "controversies." In such particular cases and controversies, it is the place of the courts to say what the law is, but only in those cases. This is necessary to confine the courts to a judicial role. Facial challenges conflict with this because they ask whether statutes constitutionally conflict in cases not before the court. Facial challenges require that no set of circumstances exist under which it would be valid, or in the case of the First amendment, the looser standard that it has prohibits too high of a ratio of protected:plainly unprotected speech. Facial challenges thus ask courts to issue decisions that are unnecessary to decide some particular case or controversy. Plaintiffs are required to show that they personally have suffered an actual or threatened injury, and must be given a remedy that is limited to the injury. Accordingly, the case is done once they have decided whether it is legitimate as-applied. Deciding whether it would be legitimate as applied to other plaintiffs is not necessary, and should be considered as no more than an advisory opinion, which should not be issued. Facial challenges allow challenging applications of statutes that have not injured him, which is ordinarily disallowed. They also allow enjoining of applications of statutes which have nothing to do with his injury, which is not how redressability is supposed to work, and like a universal injunction, which is itself problematic (citing himself and Gorsuch). Facial challenges further intrude upon powers reserved to the Legislative, the Executive, and the States. They allow for the review of constitutionality of applications of a statute before even it has been enforced, giving courts "a general veto power" upon the legislation of Congress, but the Judiciary has no constitutional role in lawmaking. As-applied challenges minimize intrusion. This leaves the Executive branch free to enforce it in other applications. Facial challenges, on the other hand are maximalist, leaving the other branches with no opportunity to correct things, harming the democratic nature of the government. Moreover, facial challenges can prevent the application of state laws in its particular cases, and usurp power from state courts, contrary to the 10th amendment.
Facial challenges also create practical problems. They harm the adversarial system, by allowing plaintiffs to present a challenge without direct knowledge of how the case might apply to others, and so often depend on speculation.
As applied to these cases, the state officials had no opportunity to tailor the enforcement of the laws, nor state legislatures to amend the statutes prior to their enjoinment, nor state courts to interpret the law. Rather federal courts, with little factual record, did. Thomas notes that some blame here is because of associational standing (e.g. NetChoice, instead of the constituent entities) mucking things up—he opposed associational standing in his concurrence over mifeprestone earlier this year—but the facial nature also plays a role in that. The task before them is impossibly complex.
They are also suspect in their origins, being a result of vagueness and overbreadth. At the time of the founding, the courts correctly understood themselves to only decide particular cases or controversies. The founders four times rejected creating a council of revision, which would evaluate and reject statutes, untied from a case. The narrow understanding of what the court could do was generally adhered to for over a century. The first change to this was the development of vagueness—courts began in 1914 to strike down statutes as unconstitutionally indefinite. In 1940, in the First Amendment context, they struck down a statute as "invalid on its face," as it was a "sweeping proscription of freedom of discussion." The court has never justified this overbreadth doctrine in text and history, "just policy considerations and value judgments." This eventually spread elsewhere, without textual or historical justification. Thomas concludes that the court should put an end to facial challenges.
Enough of the minor opinions, now to the two major ones.
Kagan writes for the majority. After introducing and giving the history of the cases (recall: 5th circuit upheld the law, the 11th circuit struck it down), she addresses the facial nature of the case. The court has made facial cases hard to win, ordinarily requiring showing that they are invalid in every application. It is still difficult even in First Amendment cases, like the present one, where the challenger must show that "a substantial number of the law's applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." But both parties thus far have only been considering them in more narrow applications (like Facebook's news feed), instead of the full range of applications (Among others, is direct messaging covered? Gmail filters? Etsy reviews?). And then it must be considered whether those applications violate the First Amendment: in the case of the content-moderation provisions, whether it intrudes on protected editorial discretion. Regarding individualized-explanation provisions, whether the disclosures unduly burden expression. These issues have not been considered, so they vacate and remand.
Then: "It is necessary to say more about how the First Amendment relates to the laws' content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below," and this is especially needed for the Fifth Circuit, as otherwise, it would just decide the same way, as it wrongly held that they were not speech at all, and wrongly treated Texas' interest as valid.
In essence, Texas' law requires carrying or promotion of speech, when the platforms would rather do the opposite. The platforms argue that this requires changing their expression, and the Court has held in the past that expression includes curation of speech by others. The precedents: In Tornillo, the Court held a law requiring newspapers give candidates the right to reply to criticism violated the First Amendment, in forcing them to print what they would otherwise not. In Pacific Gas & Elec. Co., a utility company distributed views on energy policy in its billing envelopes, the state required including inclusion of material from a different perspective, and the Court sided with the company, as it was not required to carry speech it disagreed with. In Turner I, they held that rules requiring cable operators to allocate channels to local broadcast stations involved the First Amendment. (Even though they eventually decided it was worth restricting anyway in Turner II.) In Hurley, they decided that a parade was free to decide who to admit. On the other hand, they allowed compelled access in two cases: in Pruneyard, they permitted a law compelling a mall to allow people to distribute pamphlets. And in FAIR, they permitted which compelled law schools to allow the military to recruit on campus. In both of these, it was understood that these did not affect expression of the party.
From that can be drawn three principles: The first amendment protects those who compile speech when they wish to exclude some. Secondly, this includes when they exclude just a few items. Third, the government cannot merely assert an interest in balancing the marketplace of ideas.
Things like Facebook's News Feed involve removing or prioritizing content. This is like the cases before, and so is protected. Texas's law thus is problematic. This does not change by the fact that they allow most speech through. Nor does the fact that users can easily tell that it is the users speaking, not the platform, change anything.
Texas' stated interest does not work—promoting ideological balance among private actors is not a legitimate government interest, as it is inherently censorious.
The remaining major opinion is that of Alito:
Alito opens, in the very first paragraph of his introduction, by stating that everything except the facial unconstitutionality of the case is nonbinding dicta. That is, most of Kagan's opinion is extraneous to the matter decided then, can be dismissed, and is of no precedential value. He agrees that it needs further examination as to whether it is facially unconstitutional. But they should not have gone further.
Alito proceeds to a lengthier discussion of the state laws and history of the two cases before they came to the Supreme Court. Then he turns to the facial nature of the challenge: these are strongly disfavored, and conflict with several principles—they clash with the general principle of not reaching beyond what is needed in court decisions, are antidemocratic, and "strain the limits" of the constitutional authority to decide "cases" and "controversies." Accordingly, the requirements are demanding—generally speaking, it fails wherever there is any "plainly legitimate sweep" to the statute. Netchoice asks that this standard not be applied. This is wrong, as the states have asked for the rules of a facial challenge to be applied, and even were it not the case, they would still be necessary for the courts to follow. Netchoice chose to make a facial challenge; now it must deal with the consequences of that choice.
Alito then turns to whether NetChoice manage to show that it is facially constitutional. He begins by reviewing. The First Amendment protects freedom of speech, which usually involves government efforts to forbid, restrict, or compel expression. But some cases have included presenting an edited compilation for the purpose of expressing a message. But not every compilation is expressive. Accordingly, the First Amendment only protects expressive compilations. To show that a compilation is expressive, they must first show that they exercise editorial discretion, and are not, for example, "dumb pipes" that return whatever is put in. This may vary within the same entity, even—newspapers often will exercise far less discretion in advertisements, which may make a meaningful first amendment difference, or a parade might ordinarily only select groups, and not individuals. (Contra the majority, it can matter how much they include vs. exclude, depending on their methodology.)
Additionally, the compilation must be expressing some (often abstract) point. Chronological organization, for example, isn't really expression. It was for this reason that in PruneYard they were willing to compel a mall to host third-party speech.
Third, they must show that their speech is affected by the speech it would be compelled to accommodate. In PruneYard and FAIR they held that the government could compel speech, because speech in those cases was not expressive.
After it has been shown that the first amendment applies, it then has to be shown that the regulation "violates the applicable level of First Amendment scrutiny"—as in Turner, where they decided that it did involve the first amendment, but nevertheless, the government prevailed. Here, they assert an interest in fostering a free and open marketplace of ideas, as well as preventing discrimination against people who live in Texas, which Alito considers compelling interests.
Netchoice failed to meet this burden. First, it did not establish which entities were affected, which make it difficult to know whether a facial challenge should succeed (might it cover websites like WhatsApp that act more like passive receptacles, without curation, and so be legal at least in those cases?). Second, it did not say what kind of content appears, which might be relevant for the first amendment (e.g. is it political? That might matter). Third, it does not show how they moderate. Reddit outsources moderation, which makes it arguably not reddit's speech.
The majority spends much of its opinion specifically talking about how this would apply to the Facebook newsfeed or youtube homepage. Alito points out that this might not even be needed—the fifth circuit can decide on other grounds. He disagrees with their characterization of it as expressive, as they have not revealed how their algorithms were created or work. And they do not consider whether they should be common carriers. And it is not so obvious that what these platforms do in their curation is the same as what editors do—massive scale, post hoc removal, AI algorithms. It also remains to be considered whether "network effects" make any difference. He thinks all of these should be resolved in a future as-applied challenge.
Turning to the disclosure questions (saying why messages were censored), they must, under Zauderer, not unduly burden speech. That's hard to know in a facial challenge, and even in the case of YouTube, it doesn't seem like that huge of a burden. This is especially the case for companies that already have to do all that anyway under an EU law.
Let's analyze this in a different direction, by issue.
Should this be remanded due to the facial nature of the challenge? 9-0.
Was the 5th circuit's analysis of editorial discretion problematic? Gorsuch, Alito, and Thomas do not explicitly say; the other 6 are clear that it erred.
For that reason, should the court give further guidance? 5-4 (Alito, Gorsuch, Thomas, Jackson in the minority)
Is the risk of misattribution sometimes the decisive factor as to whether it is protected speech? 5-3, against Gorsuch, Thomas, Alito. (Jackson gives no indication)
Is it ever relevant whether a compiler includes most items and excludes only a few? 6-3, against Gorsuch, Thomas, Alito.
Is an interest in improving or balancing the marketplace of ideas legitimate to compel speech? 6-3, against Gorsuch, Thomas, and Alito.
Does Netchoice's failure to establish which entities are covered mean it fails to show the laws are facially invalid? 9-0.
Is it meaningful that Netchoice has not shown how it moderates content? At least 5 agree: Alito's opinion, Jackson's (she specifically highlights it), and Barrett's.
Thomas, Gorsuch, and Alito think that the court should at least have addressed the common carrier argument. They also are concerned that there may be further concerns and important differences between editing a newspaper vs. moderating a social media site (size, network effects, algorithmic vs human moderation).
Some additional thoughts:
People, especially on the left, think of Thomas and the court as corrupt. Aside from the extent to which that is bolstered by politically motivated slander, I don't think they realize that Thomas wants to constrain judicial power, seeing its current state as beyond constitutional bounds. Compare to the complaints of Jackson in Trump v. United States, released on the same day, that the court was expanding its own power. And it isn't unique to this case; he's also expressed doubts about certain conventional forms of standing, and a few other sorts of things. I'd imagine Gorsuch concurs with Thomas on a lot of this, though not on everything he said.
All of these opinions depended heavily on precedent. I have no idea what originalist methodology would say here.
I also don't think I got a sufficiently clear view from either party as to what constitutes expression and what does not.
Felagund
3mo ago
Looking through your history, it looks like you're now Christian. What was the process in that case?
Congratulations! Must be exciting.
As to the AMA:
Are the two of you planning on having children (and if so, do you have to worry much about having time)?
What's one thing you especially appreciate about your fiancée?
I mildly dislike puzzles (I think?) because if one's in progress I'll do it compulsively instead of the other things I'd like to do. The ratio of impulse to do it vs fun had is too high.
Felagund
3mo ago
While I agree that it's not good for justices to be serving at 100, the reforms would increase politicization compared to the status quo.
Felagund
3mo ago
Those are a partisan hit job, and badly misrepresent things.
In any case, it would be obvious if you read Thomas that he's not being swayed. He's clearly one of the most principled justices, in that he cares most about what the Constitution actually says. See, for a recent example, his Netchoice opinion, where he weakens his own agreement with Alito's pseudo-dissent by saying he thinks Zauderer might have been wrongly decided. If that's not the impression you get of him, your ratio of reading slander:his opinions might be out of whack.
Felagund
3mo ago
1 is bad, it puts each former president at the mercy of his successors, as there are several broad statutes that would apply to common presidential decisions. It also grants Congress too much power, radically changing the constitutional order. Reducing immunity? Fair enough (though I imagine we'll see the courts limit it on their own). Eliminating it? Another thing entirely.
2 is bad, as it will increase politicization. They already try to avoid the luck factors by often resigning under favorable presidents. This forces supreme court to be top of the mind for every election.
Felagund
3mo ago
There is an amendment currently proposed, as follows.
No officer of the United States, including the President and the Vice President, or a Senator or Representative in Congress, shall be immune from criminal prosecution for any violation of otherwise valid Federal law, nor for any violation of State law unless the alleged criminal act was authorized by valid Federal law, on the sole ground that their alleged criminal act was within the conclusive and preclusive constitutional authority of their office or related to their official duties.
This is very bad, stripping all immunity, not merely limiting it. This would allow Congress, for example, to make vetos illegal. The court raised the example in the immunity decision that one of the charges against Trump could arguably be applied to any example of deliberate underenforcement of the law, which there tends to be some form of under every administration (e.g. immigration). In effect, it will be impossible to legally carry out the office of the presidency, and presidents will be free to bear grudges against their predecessors. Further, this includes immunity in the exclusive and preclusive powers, which even the liberal justices conceded would make sense—now Congress can set rules on when they can be vetoed? This dramatically harms the separation of powers. (Roberts notes also that no immunity would incentivize clinging to power.)
I'll note also that while the immunity ruling went too far in places (the evidence portion?), it left a lot of space, from the extreme of absolute immunity for all official conduct (which, evidently, one justice, at least, wanted) to Barrett's reading of it, which seemed always to take the most limited stance the opinion allows. It had to be written in such a way to satisfy all the people signing onto it. You can bet that if this case returns to the court after lower courts decide that Trump is not immune on the remaining questions (fake slates of electors, speeches, pressuring Pence), you will have at least four justices siding against Trump, with a pretty good chance of Roberts or Kavanaugh siding with them. That is, this is not indicative of a general principle that they're going to side with Trump.
I think it's worth taking seriously Roberts' own statement that this was intending to set forth generic principles, not ruling separately for Trump.
I don't know that I quite follow what you are saying. You seem to be saying that the courts are treating the presidency too deferentially, and so he needs to have immunity stripped. But do you have any indication of deferentiality besides the recognition of immunity (I think I've indicated why that can't be generalized)? Then your position seems closer to being that any form of immunity grants the president too much power. That is, your position on immunity, at least insofar as you articulated it here, does not seem contingent on how the courts treat him.
My expectation is that we see the immunity consistently read in the narrowest manner, making this not that impactful.
Felagund
3mo ago
I'm not following the gridlock part. Wouldn't there still be an old number of justices?
Enforceable means making a weapon to take justices they don't like off the court.
Felagund
3mo ago
Term limits would probably be struck down, without an amendment—the constitution specifies that they serve "on good behavior", which is implicitly a life term.
To what extent the Supreme Court can review the constitution is an interesting question. People often read Marbury as an assumption of judicial power, but Michael Stokes Paulsen has argued, fairly compellingly, that what they described there was both necessary, and not exclusive to the judiciary—all branches of the government, at least in all offices that take the oath, are bound to interpret and uphold the constitution. Hence Lincoln was correct in his refusal to recognize Dred Scott—it was wrong; the supreme court only decides the meaning of the constitution as appled to the particular case or controversy in question (in that case, Dred Scott himself), and he as the executive has the duty to follow the constitution as he sees it.
I think this probably matches how Thomas and Gorsuch think the court should act.
Felagund
3mo ago
My main concern (aside from constitutionality) with this is that it seems like it might lead to more politicization. Currently, in theory, any president could appoint more justices, but the risk of big political swings is tempered by justices choosing to resign sometimes under favorable presidents, which reduces the chance of any given president changing the court's composition too much—they mostly replace justices with somewhat like-minded justices. On the other hand, this would mean that for every election, the president would get to appoint two justices independent of the retiring justices' leanings. This raises the salience of supreme court picks to presidential candidates, which only serves to politicize the court further. Now every election they would need to talk about court picks, and those picks will often matter.
Felagund
3mo ago
You undervalue the past. True, we stand on untrodden ground. Never before has even this conversation across who knows how many miles been possible, for one. And yet, I do not think it is utterly uninformative. The world will not repeat itself, but you may see some pattern here or there crop up again.
I think you also undervalue whatever is not material comfort and progress. Our social relations make up a huge portion of our lives, and that is not so unambiguously better. Further, it is just not the case that everyone, everywhere, at all times, really cares only about material comfort. Your tacit assumption as much is, I think, part of our milieu. The continued existence and growth of the Amish are a living monument, I think, that people do not all value a comfortable life.
What would a society that cared about these sorts of things (social goods) do? Encourage marriage and children. Encourage general integration with society, especially in person. To the extent possible, reduce welfare and dependency. Reduce profligacy; promote austerity, at least in regard to economic activity devoted to comfort. As to government action, reduce spending, especially on welfare; seriously consider taking an economic hit to start to work on the debt. Make people responsible for things, instead of hiding it behind bureaucracies. Ideally somehow figure out how to stop being so wasteful in military spending, while also being more prepared to handle powerful actors. Actually put a stop to the Houthis messing up global shipping.
I think your final paragraph, from a brief glance, might have misunderstood what he is doing. He seemed less to be setting out an ideal of "this is the life to which we must retvrn" so much as saying that the right does not encourage certain sorts of ambition enough, and so large classes of society have been ceded to the left. This is correct, and has been noted by left-leaning commentators. He prescribes not settling.
That said, you have a point—no one really has a vision of what things should be like. I think the desire for some sort of action and striving that you point to and question has something to it—Aristotle was gesturing at something real when he characterized eudaimonia as an activity of the soul in accordance with virtue—but it must be to some end, some purpose. This, I think, is where a lot of people see value. In the struggle, in their achievements that they have toiled over and after—that, they can be pleased with. People value being relied upon, necessary, to be making a difference. We are often happier in the breathless pursuit of a thing than in the possession of it. But the solution is not toil for toil's sake, as you rightly seem to gesture at. We do not value pointless work. And there hardly seems to be any terminal value that people are content with. Science fiction, I suppose, will often seek endless exploration of the universe. But why? To what end? Because we couldn't think of anything better to do? What is the chief end of man?
Ecclesiastes is a good book.
I realized I didn't list the additional and maybe most likely possibility that they just start appointing justices two years, with the longest-serving justices phased out then. This would still try to remove two conservatives right away and replace them, but it would be slower.
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