NetChoice Decision Drowning In Dicta
Supreme Court Wrap-Up for Moody v. Netchoice, No. 22-277 (U.S. July 01, 2024)
On July 1, 2024 the Supreme Court would blow its final load of cases for this term in a jurisprudential money shot that seemed to catch the entire country off guard. Unfortunately the most important and most surprising opinion was overshadowed by the legally unsurprising, but culturally shocking Trump v. United States, No. 23-939 (U.S. July 01, 2024).
Things got pretty exciting as people learned the Executive is, in some contexts, immune from prosecution. Unfortunately the NetChoice decision would be swept away by the controversy surrounding immunity. A controversy I’m not quite sure I understand, given the fact that from a separation of powers perspective that’s an entirely reasonable conclusion. But that’s not what we are here to discuss.
We are here to discuss the decision in Moody v. NetChoice, the final decision to be released from my 2023-2024 Supreme Court Roundup.
As many of you may well recall from my earlier articles and videos covering this case:
Back on September 29, 2023, the Supreme Court would grant cert on two cases dealing with the constitutionality of controversial laws in Texas and Florida that would regulate how large social media companies like Facebook and Twitter control content posted on their sites. The laws were enacted in response to legislators’ beliefs that the companies were censoring their users, particularly those with conservative views.
In 2021, Florida and Texas would pass laws that restrict the ability of social media platforms to control whether and how third-party posts are presented to other users. Or, otherwise put, these laws limit the social media platforms ability to engage in content moderation.
The Texas law, known as H.B. 20, bars social-media platforms with at least 50 million active users from blocking, removing, or “demonetizing” content based on the users’ views. The Florida law, known as S.B. 7072 or the Stop Social Media Censorship Act, prohibits social-media companies from banning political candidates and “journalistic enterprises.”
~Moody v. Netchoice, No. 22-277 (U.S. July 01, 2024)
The States’ laws differ in the entities they cover and the activities they limit. But both curtail the platforms’ capacity to engage in content moderation—to filter, prioritize, and label the varied third-party messages, videos, and other content their users wish to post. Both laws also include individualized-explanation provisions, requiring a platform to give reasons to a user if it removes or alters their posts.
Netchoice, an internet trade association went to federal court in Texas and Florida to challenge the laws, arguing (among other things) the laws violate their First Amendment right to control what speech appears on their platform.
The question presented in this case were: (1) Whether the First Amendment prohibits a State from requiring that social-media companies host third-party communications, and from regulating the time, place, and manner in which they do so. (2) Whether the First Amendment prohibits a State from requiring social-media companies to notify and provide an explanation to their users when they censor the user's speech (Moody v. NetChoice, 2024).
Though, as those of you who viewed my post-oral arguments update may recall, during the 3+ hours of oral arguments they never really got around to question two.
So the argument really focused around whether or not these content-moderation restrictions violate the First Amendment rights of these private social media platforms.
The First Amendment does not go on leave when social media companies are concerned. But on the other hand, NetChoice chose to litigate these cases as a facial challenge, and that decision comes at a cost.
~Justice Kagan, Moody v. Netchoice, No. 22-277 (U.S. July 01, 2024)
In both instances, NetChoice filed suits in federal courts, bringing facial challenges to these laws, claiming it violated the First Amendment in all its applications. Consequentially, NetChoice sought preliminary injunctions against any enforcement of any provision of these laws. In both cases, the District Courts enjoined any enforcement of the law.
The Eleventh Circuit would affirm the Florida District Court’s finding that the law would likely not survive First Amendment review. On the other hand, the Fifth Circuit would reverse the Texas court’s injunction on the grounds that the Texas law does not regulate any speech and so does not implicate the First Amendment (NetChoice, LLC v. Attorney Gen., 2022).
These rulings created a textbook example of an on point circuit split, prompting the Supreme Court to grant cert for both cases on September 29, 2023.
I
According to Justice Kagan’s majority opinion, neither the Eleventh nor Fifth Circuit conducted the proper analysis for a First Amendment facial challenge.
Unlike other facial challenges that use the Salerno formulation, see: United States v. Salerno, 481 U. S. 739, 745 (1987), which holds that a facial challenge must establish that no set of circumstances exist under which any provision of this law would be valid.
A First Amendment facial challenge instead relies on the Overbreadth Doctrine, see: Hansen, 599 U. S. at 770, Bonta, 594 U. S. at 615 and United States v. Williams, 553 U. S. 285, 292-293 (2008). This involves looking at all possible applications of the law to determine which of those applications are constitutional and which are unconstitutional, to decide whether the law “prohibits a substantial amount of protected speech, relative to its plainly legitimate sweep," (see: Washington State Grange, 552 U. S., at 449.)
In both instances the lower courts analysis and arguments focused on how the laws applied to the content-moderation practices that giant social-media platforms use; such as how the laws applies to the likes of Facebook’s News Feed and YouTube’s homepage. They did not address the full range of activities the laws cover, nor measure the constitutional applications against the unconstitutional applications. In short, they treated these cases more like as-applied claims than like facial ones.
Justice Alito would author a concurrence joined by Justices Gorsuch and Thomas in which they would concur with the narrow-holding of the case, finding that NetChoice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional.
But Alito also challenges the strain facial challenges put on the federal court’s constitutional authority to decide only actual “cases” and “controversies”—Consistent with Art. III, § 2. As litigants generally lack standing to bring cases protecting the rights of third parties, (see: Hansen, 599 U.S. 762, 769) the courts have otherwise insisted that facial challenges stand up to the rigorous scrutiny outlined in Salerno. He contends the Overbreadth Doctrine is too loose and permissive, suggesting a First Amendment facial challenge should be decided in accordance with the more stringent standard found in the Salerno Doctrine.
Justice Thomas goes further still, finding that facial challenges are fundamentally at odds with Article III limits on Federal Court’s judicial power over “cases” and “controversies.” Accordingly, federal courts can decide whether a statute is constitutional only as applied to the parties before them— they lack authority to deem a statute “facially” unconstitutional.
II
Though Moody v. Netchoice was ostensibly a unanimous decision, that agreement was solely in regard to the Court’s narrow primary holding, which found that neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to the Florida and Texas laws.
The majority goes on to preview the steps by which a proper facial analysis in this case should proceed. The first step walks through a number of possible applications of these laws to services such as Gmail, Etsy, and Venmo. The next step, according to the majority, is to decide which applications of these laws would constitute a First amendment violation and measure them against the rest.
The Court goes onto cite Cutter v. Wilkinson, 544 U.S. 709 — which highlights the fact the Supreme Court cannot undertake the needed inquiries to establish all possible applications of these laws, and can therefore not decide which applications violate the First Amendment:
"[W]e are a court of review, not of first view" (Ginsburg, 2005).
Justice Kagan goes onto explain how, even if the Court decided to ignore their role as a Court of appellate jurisdiction in cases such as this, they still could not undertake a facial analysis of this case’s First Amendment challenges, because the parties have not briefed the critical issues, nor even developed a complete record of these issues.
III
Naturally, Justice Kagan immediately proceeds to fill the next 15 pages of this Court’s opinion with an explanation of virtually all the relevant facets of a First Amendment analysis. This appears to have been a preemptive effort to prevent the Fifth Circuit from issuing a ruling that conflicts with the majority’s understanding of the merits. They assert the Fifth Circuit may presumably repeat what the Court identifies as errors of judgment in their treatment of NetChoice’s challenge—noting the Fifth Circuit’s conclusions rest on a serious misunderstanding of First Amendment precedent and principles.
However, four Justices would reject the majority’s decision to issue a judgement that goes on to treat both laws like an as-applied challenge and to preview their potential future ruling on the merits. This includes Justice Jackson, who had joined the majority in full in their analysis of part I and II.
Justices Jackson, Alito, Gorsuch and Thomas argue the Court’s broader attempts to provide guidance on how these laws should be applied is both unnecessary and unjustified, as was their preview of a future merits ruling. They concluded there was no reason to decide anything other than the facial unconstitutionality question actually before the court.
Justice Thomas would punctuate this argument with Justice Scalia’s timeless maxim (See Jama, 543 U.S. 335):
“Dictum settles nothing, even in the Court that utters it” (Scalia, 2005).
Moreover, every concurrence criticizes the Court for engaging in the exact type of analysis that it chastises the Courts of Appeals for performing.
Conclusion
What we end up with in the NetChoice cases is an ostensibly unanimous 9-0 decision—that is beyond complicated in the particulars and where the only thing that all nine Justices agreed on was that they were going to disagree on the questions presented because of the complicated procedural posturing in this case.
But at least the primary holding is clear: The judgments are vacated, and the cases are remanded, because neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to these Florida and Texas laws regulating large internet platforms.
Much like the Rahimi decision, the Court uses the facial challenge analysis as a subtle way of reversing the Fifth Circuit, without having to actually decide the case on the same basis.
Citations
Congress. (1791, December 15). U.S. Constitution - First Amendment . Constitution.congress.gov; Library of Congress. https://constitution.congress.gov/constitution/amendment-1/
Florida Senate Online. (2021, July 1). Senate Bill 7072 (2021) - The Florida Senate. Flsenate.gov. https://www.flsenate.gov/Session/Bill/2021/7072
Ginsburg, R. (2005, May 31). Cutter v. Wilkinson, 544 U.S. 709 (2005). Justia Law. https://supreme.justia.com/cases/federal/us/544/709/. Footnote 7.
Moody v. NetChoice, (United States Supreme Court July 1, 2024). https://www.supremecourt.gov/qp/22-00277qp.pdf. Question Presented.
Moody v. NetChoice, LLC, 603 U.S. ___ (2024). (2024, July 1). Justia Law. https://supreme.justia.com/cases/federal/us/603/22-277/
Moody v. NetChoice, No. 22-277 (U.S. July 01, 2024). (2024). U.S. Reports. https://www.supremecourt.gov/opinions/23pdf/22-277diff_3e04.pdf
NetChoice, LLC v. Attorney Gen., (United States Court of Appeals, Eleventh Circuit May 23, 2022). https://casetext.com/case/netchoice-llc-v-attorney-gen
NetChoice, LLC v. Paxton, (United States Court of Appeals, Fifth Circuit September 16, 2022). https://casetext.com/case/netchoice-llc-v-paxton-2
Rehnquist, W. (1987, May 26). United States v. Salerno, 481 U.S. 739 (1987). Justia Law. https://supreme.justia.com/cases/federal/us/481/739
Scalia, A. (2005, January 12). Jama v. Immigration and Customs Enforcement, 543 U.S. 335 (2005). Justia Law. https://supreme.justia.com/cases/federal/us/543/335/
Texas Legislature Online. (2021, September 9). HB 20 - Introduced version - Bill Text. Capitol.texas.gov. https://capitol.texas.gov/tlodocs/872/billtext/html/HB00020I.htm. Legislative Session 87(2).
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