The Supreme Court today issued a ruling in Moody v. NetChoice (consolidated with NetChoice v. Paxton) that bears on laws from Florida and Texas that restrict the ability of social-media platforms to control whether and how third-party posts are presented to other users.
In her majority opinion for five justices, Justice Kagan ruled that the appellate courts in the two cases below—the Eleventh Circuit on the Florida law and the Fifth Circuit on the Texas law—had failed to properly consider the “facial nature” of NetChoice’s challenges. In brief, under existing precedent, because NetChoice was challenging both laws “on their face … rather than as to particular applications,” it could prevail on its First Amendment claim only if “a substantial number of the law’s applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Kagan faults the Eleventh Circuit (which ruled against the Florida law) and the Fifth Circuit (which ruled in favor of the Texas law) for treating the cases “more like as-applied claims than like facial ones.”
Kagan offers guidance on the inquiries that the courts should conduct on remand. “The first step in the proper facial analysis is to assess the state laws’ scope. What activities, by what actors, do the laws prohibit or otherwise regulate?” “The next order of business is to decide which of the laws’ applications violate the First Amendment, and to measure them against the rest.”
Beyond the facial-challenge standard, Kagan faults the Fifth Circuit for its “serious misunderstanding of First Amendment precedent and principle”:
The Fifth Circuit was wrong in concluding that Texas’s restrictions on the platforms’ selection, ordering, and labeling of third-party posts do not interfere with expression. And the court was wrong to treat as valid Texas’s interest in changing the content of the platforms’ feeds.
She extracts three general principles from the Court’s cases:
First, the First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude….
Second, none of that changes just because a compiler includes most items and excludes just a few….
Third, the government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas.
Her critique suggests that Texas will have a very difficult time prevailing on remand.
The Chief and Justices Sotomayor, Kavanaugh, and Barrett joined Kagan’s opinion in full, and Justice Jackson concurred in part.
In an opinion concurring in the judgment of remand, Justice Thomas argues that federal courts lack authority to deem a statute “facially” unconstitutional.
In his own lengthy opinion concurring in the judgment, Justice Alito (joined by Justices Thomas and Gorsuch) complains that the majority opinion includes lots of “nonbinding dicta” that goes far beyond simply holding that NetChoice failed to prove that the Florida and Texas laws are facially unconstitutional. Among other things, he charges that the majority “unreflectively assumes the truth of NetChoice’s unsupported assertion that social-media platforms—which use secret algorithms to review and moderate an almost unimaginable quantity of data today—are just as expressive as the newspaper editors who marked up typescripts in blue pencil 50 years ago.”