On Monday, I tried to make sense of the various opinions in Moody v. NetChoice. Really, nothing lines up. Everyone agrees that the lower courts failed to apply the proper standard for the facial challenge. But the Justices then sharply divide about what kind of instructions to provide the lower courts, even as they all profess some sort of minimalism. After Justice Alito (likely) lost the majority opinion, the entire case went schizophrenic.
Here, I'd like to write about the most confounding opinion in the lot: Justice Barrett's concurrence. Unlike in Trump v. United States, she joins the majority opinion in full. Presumably, she agrees with Part II concerning the facial analysis, but she doesn't say a word about that part. But she does expressly agree with the Court's First Amendment analysis:
I join the Court's opinion, which correctly articulates and applies our First Amendment precedent. In this respect, the Eleventh Circuit's understanding of the First Amendment's protection of editorial discretion was generally correct; the Fifth Circuit's was not.
