A striking characteristic of last month's oral arguments in the content-moderation cases was the uncertainty about facts. In Moody v. NetChoice and NetChoice v. Paxton, it was really unclear what the effect of the laws would be in practice. Which businesses and business models would be affected, and how—all of this was unclear, or at least it seemed so in the oral argument. (I will confess to not having followed the briefs in the cases.) And that lack of clarity affects the substantive questions, but also the questions about whether this should be considered a so-called "facial challenge."
There was debate at the oral argument about how much this was due to litigation decisions by the states. But it's also due to changes in how suits and remedies are conceptualized. There are so many pressures toward abstraction—preenforcement suits, broad injunctions, and major constitutional questions decided on appeals from preliminary injunctions. And there are other pressures toward abstraction that apply in other cases, such as state standing after Massachusetts v. EPA (on that, see Proper Parties, Proper Relief). Putting all this together means that major constitutional questions are increasingly decided in an essentially fact-free posture, which is a significant change from the way First Amendment cases used to be decided primarily when there was some kind of actual enforcement of the challenged statute. That's not good.
It's not good for the decisionmaking of the Court, if we really believe that cases make good law. And it's also not good as a democratic matter, because it prevents experimentation by elected legislatures. And these two problems intersect: if states could experiment, and their laws actually went into effect, then we could see what the results are. The parade of horribles might not have that many floats–or it might have more than could have been imagined. But either way the courts will be in a better position to assess what happened after a law goes into a effect and there has been a trial, instead of after preenforcement preliminary injunctions block the law from going into effect (I speak colloquially–a court can do no such thing). Without any actual enforcement of a law, the constitutional analysis rests on the hopes and fears about what enforcement would be. "If hopes were dupes, fears may be liars."
This trend toward abstract, fact-free constitutional decisionmaking was on clear display in the content-moderation cases.
One good corrective would be to have more occasions where the Supreme Court or a court of appeals dissolves a preliminary injunction and remands the case for further proceedings, including trial once there has been some experience with the enforcement of the challenged statute or rule.
Speaking of facial challenges, I can't help but pass along this great passage from Justice Scalia's dissent in Morales, in case any readers do not know it:
When a facial challenge is successful, the law in question is declared to be unenforceable in all its applications, and not just in its particular application to the party in suit. To tell the truth, it is highly questionable whether federal courts have any business making such a declaration. The rationale for our power to review federal legislation for constitutionality, expressed in Marbury v. Madison, 1 Cranch 137 (1803), was that we had to do so in order to decide the case before us. But that rationale only extends so far as to require us to determine that the statute is unconstitutional as applied to this party, in the circumstances of this case.
That limitation was fully grasped by Tocqueville, in his famous chapter on the power of the judiciary in American society:
"The second characteristic of judicial power is, that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important, and perhaps a more useful influence, than that of the magistrate; but he ceases to represent the judicial power.
. . . . .
"Whenever a law which the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule … . But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force. Those to whom it is prejudicial learn that means exist of overcoming its authority; and similar suits are multiplied, until it becomes powerless. … The political power which the Americans have entrusted to their courts of justice is therefore immense; but the evils of this power are considerably diminished by the impossibility of attacking the laws except through the courts of justice. … [W]hen a judge contests a law in an obscure debate on some particular case, the importance of his attack is concealed from public notice; his decision bears upon the interest of an individual, and the law is slighted only incidentally. Moreover, although it is censured, it is not abolished; its moral force may be diminished, but its authority is not taken away; and its final destruction can be accomplished only by the reiterated attacks of judicial functionaries." Democracy in America 73, 75—76 (R. Heffner ed. 1956).
As Justice Sutherland described our system in his opinion for a unanimous Court in Massachusetts v. Mellon, 262 U.S. 447, 488 (1923):
"We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. . . . If a case for preventive relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding."
And as Justice Brennan described our system in his opinion for a unanimous Court in United States v. Raines, 362 U.S. 17, 21—22 (1960):
"The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies before them. . . . This Court, as is the case with all federal courts, 'has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied'. . . . Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. . . . The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined."
It seems to me fundamentally incompatible with this system for the Court not to be content to find that a statute is unconstitutional as applied to the person before it, but to go further and pronounce that the statute is unconstitutional in all applications. Its reasoning may well suggest as much, but to pronounce a holding on that point seems to me no more than an advisory opinion–which a federal court should never issue at all, see Hayburn's Case, 2 Dall. 409 (1792), and especially should not issue with regard to a constitutional question, as to which we seek to avoid even nonadvisory opinions, see, e.g., Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). I think it quite improper, in short, to ask the constitutional claimant before us: Do you just want us to say that this statute cannot constitutionally be applied to you in this case, or do you want to go for broke and try to get the statute pronounced void in all its applications?
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