Dallas appellate attorneys Randall W. Miller, Stephen Gibson and Maddison L. Craig prepared an influential amicus curiae brief on behalf of the Center for American Liberty (“CAL”) and their arguments were reflected in yesterday’s opinion from the Supreme Court of the United States. In Moody et al., v. NetChoice et al., the Supreme Court considered Florida and Texas’ recent statutes limiting social media platforms’ ability to edit and censor its users’ content. The Supreme Court vacated and remanded both the Fifth and Eleventh Circuit cases for reconsideration under its now-clarified standard for facial First Amendment challenges.

Under the Court’s clarified examination, facial challenges must first understand the scope of the statute to create an understood list of impacted applications. Then, facial challenges sort between constitutional and unconstitutional applications. “The question is whether a substantial number of the law’s applications are unconstitutional judged in relation to the statute’s plainly legitimate sweep.” Moody, at 9 (internal citation omitted). Despite the Court’s clarified test—and refusal to consider its applicability to the Florida and Texas laws—the Court made clear it believed NetChoice could not sustain a facial challenge. “NetChoice chose to litigate these cases as facial challenges, and that decision comes at a cost. . . This Court has [] made facial challenges hard to win.” Moody, at 9.

In the amicus brief, Miller, Gibson and Craig emphasized the importance of applying the right test to protect CAL’s mission of ensuring user free speech. The brief emphasized the need to identify the scope of the statutes, and correctly rationalized that the number of “multiple scenarios in which the law may be validly applied” prevents Netchoice from “prevail[ing] on a facial challenge to either the Texas law or the Florida law.” CAL Brief for Moody, at 11.

The main focus of future proceedings will first be the scope of the statute’s application. Does the statute include Facebook’s News Feed and Facebook Messenger? What about Uber? Or Venmo? See e.g. Moody, Barrett, J. (concurring), at 2. As it stands, without creating a list and checking it twice, “Texas is not likely to succeed in enforcing its law against platform’s application of their content-moderation policies to the feeds that were the focus of the proceedings below.” Moody. at 20. In fact, Justice Barrett’s concurrence identifies that NetChoice should have brought an as-applied challenge, something the CAL brief identified immediately. CAL Brief for Moody, at 18 (“Instead, the Platforms should be required to bring as-applied challenges to demonstrate how the statutes allegedly infringe on each Platform’s constitutional rights.”)