This past summer, the Supreme Court decided Moody v. Netchoice, LLC[1] and evaluated whether two laws, one in Texas and one in Florida, violated the First Amendment free speech rights of several major social media companies including Facebook and Youtube. The laws in question affected the companies’ ability to curate the content that appeared on their platforms and required that if certain posts were removed, that individualized explanations be provided justifying those decisions.[2]
The Fifth and Eleventh circuits both evaluated this question and came to entirely different conclusions. The Fifth Circuit determined that the content moderation decisions affected by the Texas law were not even expressive conduct at all and so dismissed the free speech challenge entirely. The Eleventh Circuit, on the other hand, found that speech was implicated and upheld a preliminary injunction of the Florida law at issue.[3]
Wading into the fray, the Supreme Court remanded these cases for reasons entirely separate from the merits. In an opinion authored by Justice Kagan, the Court determined that both circuits had failed to properly apply the standard for assessing “facial,” in contrast to “as-applied,” First Amendment challenges.
In the cases below, the plaintiff trade association (“Netchoice”) had decided to bring facial challenges to the Texas and Florida laws. The Supreme Court held, however, that both circuits failed to conduct the proper analysis warranted by such a decision.[4] While the plaintiff had mainly focused in their arguments below on the specific applications of the laws to the most “paradigmatic social-media platforms,” the Supreme Court found that by doing so the courts had failed to conduct the proper analysis required by facial challenges which is far broader in scope.[5] As Justice Kagan explained, the scope of a facial challenge is “is whether a law’s unconstitutional applications are substantial compared to its constitutional ones.”[6] Essentially, courts assessing facial First Amendment challenges need to review all of the possible applications of a law and methodically assess piece by piece whether each of those applications are constitutional or not. Only if the number of unconstitutional applications substantially outweigh the constitutional applications would a facial challenge be successful.[7]
The Court explained that this extraordinarily high bar for facial claims exists for a good reason. Facial claims “‘often rest on speculation’ about the law’s coverage and its future enforcement. And ‘facial challenges threaten to short circuit the democratic process’ by preventing duly enacted laws from being implemented in constitutional ways.”[8] In contrast, as-applied challenges provide courts with a more specific question as well as a developed record that allows their decisions to be more focused.[9]
While a successful facial challenge would have invalidated the laws entirely, Netchoice’s decision to bring only facial challenges came with a cost.[10] Indeed, under the circumstances the Court recommended that since only a few major applications of the law appeared to be at issue (the implications the laws would have for Facebook’s newsfeed, for instance), that Netchoice would have been “better served by bringing a First Amendment challenge as applied to those functions.”[11]
In a land-use context, the Court has also recommended the virtues of as-applied as opposed to facial challenges. In the landmark 1886 case Yick Wo v. Hopkins, the Court invalidated under the 14th Amendment decisions to imprison Chinese nationals for failing to comply with a San Francisco ordinance requiring laundries to only be made with brick or stone when the ordinance also invested an official with the power to grant or deny exceptions to those requirements.[12] While every law student might remember Yick Wo from the famous “evil eye and an unequal hand” line, probably more unfamiliar is the fact that the context of that statement is relevant to the distinction between “facial” and “as-applied” challenges:
“Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.”[13]
While facial and as-applied challenges were made here, the Court ultimately decided the case on an as-applied basis—thereby keeping the ordinance intact.[14]
If you are considering litigation to enforce your constitutional rights, you will want attorneys who understand the differences between “facial” or “as-applied” challenges and the strategic value each might bring to your case. The experienced attorneys at Dalton & Tomich would be happy to take your call and assist you in navigating these issues.
[1] 603 U.S. 707 (2024).
[2] Id. at 717.
[3] Id.
[4] Id. at 717 (“[t]oday, we vacate both decisions for reasons separate from the First Amendment merits, because neither Court of Appeals properly considered the facial nature of NetChoice’s challenge.”).
[5] Id. at 718
[6] Id. (emphasis added).
[7] The Court also recognized that standard for facial First Amendment claims is actually much more relaxed than for other claims, “[i]n other cases, a plaintiff cannot succeed on a facial challenge unless he ‘establish[es] that no set of circumstances exists under which the [law] would be valid,’ or he shows that the law lacks a ‘plainly legitimate sweep.’” Id. at 723 quoting United States v. Salerno, 481 U.S. 739, 745 (1987).
[8] Id. at 719 quoting Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450–451, (2008).
[9] See id.
[10] Id. at 723.
[11] Id. at 745.
[12] Yick Wo v. Hopkins, 118 U.S. 356, 366, 374 (1886).
[13] Id. at 373 (emphasis added).
[14] Id. (“for the cases present the ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the state itself, with a mind so unequal and oppressive as to amount to a practical denial by the state of that equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the fourteenth amendment to the constitution of the United States.”) (emphasis added).
