Decision Alert: Supreme Court Holds in Speech Cases That First Amendment Facial Challenges Require Thorough Analysis of Law’s Application To Show It’s Largely Unconstitutional

On July 1, 2024, the Supreme Court held in Moody v. NetChoice and NetChoice v. Paxton that courts cannot rule on facial First Amendment challenges to laws without conducting a proper and thorough analysis of the law’s application. While the Court’s judgment was unanimous, three justices did not join Justice Kagan’s majority opinion in full. Justices Jackson, Thomas, and Alito each filed an opinion concurring with the judgment, with Justices Gorsuch and Thomas joining the Alito opinion. Justice Barrett also filed a concurring opinion.

As summarized in Dykema’s March 2024 edition, Florida and Texas enacted laws intended to combat bias and censorship of conservative users by large social media platforms. Trade associations representing social media platforms challenged the laws, asserting facial challenges and arguing that they violated the platforms’ freedom of speech and were preempted by federal law. The district courts preliminarily enjoined the new laws, with the Eleventh Circuit upholding the injunction of the Florida law and the Fifth Circuit reversing the injunction of the Texas law.

In the consolidated cases, the Supreme Court vacated the judgments below, holding that neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the trade associations’ facial challenges. The Court reasoned that the lower courts should have analyzed the challenges more broadly because the laws might apply to, and differently affect, other kinds of websites and apps. A plaintiff can succeed on a facial challenge only if a substantial number of the law’s applications are unconstitutional when judged in relation to the statute’s “plainly legitimate sweep.” However the lower courts did not address the “full range” of activities covered by the law, measure the constitutional applications of the law against unconstitutional ones, or evaluate whether the laws intrude on the platforms’ protected editorial discretion. Still, the Court suggested that the Texas law would likely not survive scrutiny, even under a more lenient standard, because it does not promote a “substantial governmental interest… unrelated to the suppression of free expression.”

In her concurrence, Justice Barrett wrote that the trade associations “would be better served” by bringing the First Amendment challenge as applied to specific social media functions. Justice Jackson’s concurrence argued that the lower court records were inadequate, making it difficult to say whether the state laws were facially valid. In his concurrence, Justice Thomas reasoned that the Court should have gone no further than vacating and remanding the judgments of the lower courts and that it was improper to “opine on certain applications” of the statutes. Justice Alito’s concurrence highlighted the Court’s narrow holding that the lower courts have not properly decided whether the laws were facially unconstitutional.

Takeaway

• When analyzing a First Amendment facial challenge to a speech law, courts must consider the full range of activities the law covers and must measure the constitutional applications of the law against the unconstitutional ones.

For more information, please contact Chantel Febus, James Azadian, Cory Webster, Christopher Sakauye, Monika Harris, Puja Valera, or A. Joseph Duffy, IV.