In today's Moody v. Netchoice, LLC, the Supreme Court sent back to lower courts the cases considering whether (and when) the Florida and Texas limits on social media content moderation are constitutional. The decision was complicated and limited, so here's a general summary.
[1.] Remember that the lawyer's true superpower is to turn every question into a question about procedure. Here, that procedural question was whether Netchoice—a consortium of internet technology companies—can challenge the Florida and Texas laws on their face as "overbroad," or must challenge the laws "as applied" to particular company practices. The Supreme Court unanimously concludes that the lower courts erred in deciding the overbreadth question; here's Justice Kagan's majority opinion on this, though all Justices generally agree on this point:
The courts mainly addressed what the parties had focused on. And the parties mainly argued these cases as if the laws applied only to the curated feeds offered by the largest and most paradigmatic social-media platforms—as if, say, each case presented an as-applied challenge brought by Facebook protesting its loss of control over the content of its News Feed.
But argument in this Court revealed that the laws might apply to, and differently affect, other kinds of websites and apps. In a facial challenge, that could well matter, even when the challenge is brought under the First Amendment. As explained below, the question in such a case is whether a law's unconstitutional applications are substantial compared to its constitutional ones.
To make that judgment, a court must determine a law's full set of applications, evaluate which are constitutional and which are not, and compare the one to the other. Neither court performed that necessary inquiry.
