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Notes -
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,
TwitterX, 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?
Personally, I believe the court should just carve a distinction between curated and carried speech. There is a speech interest in, say, a supermarket curating the newspapers that they carry; there is not a speech interest in a supermarket excluding topics of discussion between shoppers, even though they take part inside their venue. Nobody interprets, say, their Facebook feed as being a communication from Facebook. IMO this should cover both "direct" and "group" messages. There may still be other grounds to block it, such as a stated or implied disinterest on the part of the recipient, or curation by instruction of the recipient, but not venue 1A grounds, because nobody reasonably interprets them to be the voice of the venue to start with.
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?
I have no good opinion on that. I think it's a novel thing, so I can't reason about it by analogy, and I don't think it can be considered accounted for under the law in any sort of originalist reasoning or even at all. I think it's a thing where we just have to make up our minds and decide what we want from scratch.
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