More Facts, Please

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?

Comments

[KenveeB]

"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.)"

Hang on. You didn't even bother to look at the briefs, and you complain that the facts were unclear and will affect the decision-making of the court? I'm pretty sure the justices will be looking at the briefs. Oral argument is for hashing out the legal details among people who are already familiar with the facts and the argument, not for giving a factual review to looky-loos. If you want to know more about the factual background, try reading the briefs.

[LawTalkingGuy]

“Facts” in briefs aren’t “facts” in the sense he means. These are assertions that are often not the result of an extensive trial record and are simply assertions by the parties. At best they’re “legislative facts” i.e. facts relevant to the interpretation of a legal text. But they are not “adjudicative facts” that is case specific facts developed through discovery and trial.

Bray thinks there is a lack of adjudicative facts, in this case and others. They haven’t actually developed case specific facts through trial about how these laws work in practice.

[Dan Schiavetta]

Kenvee is correct though. If one hasn’t read the briefs one has no business weighing in on the behavior at oral argument. In fact many times the court starts off by warning the parties that they’ve read the briefs and will not hear simple rehashes of what they contain.

[LawTalkingGuy]

If they’re talking about the lack of record though he does. Because again: briefs aren’t facts.

[Dan Schiavetta]

How can he know anything about a lack of record if he hasn’t seen the submissions?

[LawTalkingGuy]

Because the justices themselves were talking about it at oral argument

[Dan Schiavetta]

You can’t know if the record is deficient if you haven’t seen it — unless they meant the lack of any record at all, which they weren’t.

[I woke up when Hillary talked about Reconstruction]

So we have descended to whether one knows the fact in the briefs as a necessary preliminary to the facts about the facts. See,this is why lawyers are loathed.You do see that, right 🙂

[Rigelsen]

Kenvee is wrong, though, because “facts” in a legal sense have to be developed by the courts, specifically in the trial phase. The briefs can offer inference based on general facts, but they are not legal “facts” for the purposes of the courts.

[Rigelsen]

You’re misunderstanding. He’s not saying there aren’t arguments. He is saying there are no facts in the legal sense, just judgement based in general inference, because no such specific/evidentiary facts were allowed to be developed on the ground as these laws were enjoined before implementation.

In this case, the judgements, trial court on, were based on inference, not factual evidence derived from actual impact of the laws in question. Of course, as there is no such factual record, the SCOTUS review of the case can effectively be de novo without having to consider any such pesky inconvenient facts.

[KenveeB]

I could buy that explanation if he hadn’t explicitly said “all of this was unclear, or at least it seemed so in the oral argument,” then noted he hadn’t looked at the briefs. He’s basing his statement explicitly on less than half the case. If he’d gone to check the briefs and then determined that the case was being determined on assumptions rather than facts, then fine. But he’s the one making assumptions. How much trouble would it be to take a cursory look at the briefing before writing a lengthy post complaining about it?

[SRG2]

So courts get flooded with plaintiffs all of whom are potentially affected by new legislation, because a judge's ruling should apply only to an instant case?

[LawTalkingGuy]

I mean it actually does only apply to the instant case. Injunctions and declaratory judgments only apply to the parties in a case. But once the court of last resort rules, then that’s the rule lower courts apply to similar cases. Lawyers have an obligation to take that into account when bringing cases or defending them. The reason it seems like it applies beyond the parties is because the lower courts and the legal community are bound by the holding/reasoning of the court of last resort.

So let’s say the court rules against Texas/Florida here. A different state could try to enforce a similar law. And the lower courts would have to apply the rule from SCOTUS if it’s challenged. But no one from the third state would actually be in contempt for violating an order of the court.

[John F. Carr]

"it was really unclear what the effect of the laws would be in practice"

I think one of the laws should have been left in place a while longer to see what really happened. The affected conduct is far from the core of First Amendment protection even if it ends up protected by the First Amendment. If Texas said every page on Facebook had to show a MAGA hat on top, that would be a different story.

[Randal]

You think editorial decisionmaking is far from the core of First Amendment protection?

So like, New York could take over the WSJ editorial board for a while just to see what really happened? After all, why should unelected media magnates get to decide which stories Americans get to see in their newspapers?

Lame.

[Rossami]

re: "if we really believe that cases make good law"

Since the axiom is that bad cases make bad law, I'm not sure your starting premise is true. In fact, I submit that you may have it exactly backwards.

"Good law" is (or should be) made by legislatures. Courts then interpret and apply that law. Applying it certainly depends on the specific facts in the case but it's not obvious that interpretation must be so dependent. When the interpretation is about conflict with a superior law (such as a constitutional mandate), I see little value to letting legislatures "experiment" with subordinate laws that have no chance of survival.

[Stepped Reckoner]

I am pretty sure that statement in the OP has a typo.

PROFESSOR BRAY, I think your post has a typo. When you wrote ‘that cases make bad law,’, I believe you meant to write ‘that hard cases make bad law’ instead.

[Rossami]

If it's a typo, it's a big one because he explicitly says "that cases make good law".

[Jett's Pop]

". . . instead of after preenforcement preliminary injunctions block the law from going into effect (I speak colloquially–a court can do no such thing)."

It can't? Why not? If a court enjoins the state entity or person responsible for the law going into effect from enforcing it, isn't that just what such an injunction does?

[ReaderY]

The problem here is the overbreadth doctrine, the idea that the First Amendment is so specially important it permits plaintiffs to assert the rights of hypothetical parties facing hypothetical enforcement of a hypothetical interpretation of a statute on grounds the mere possibility of enforcement will chill people from speaking.

As Professor Bray ably explains, the overbreadth doctrine is fundamentally autological.

[Michael Ejercito]

There is an overbreadth doctrine for good reasons.

Of course, even considering the overbreadth doctrine, the facial challenge against Texas's law should be dismissed.

[ReaderY]

Perhaps the overbreadth doctrine could be narrowed to the point of heterologicality without being abolished entirely.

[bacchys]

The problem with Scalia's viewpoint in Morales is many people have to be victimized by an unconstitutional law before it loses that "moral force." Even then, the state can still use it to punish by process.

[TheAmazingEmu]

Justice Scalia has no problem declaring laws unconstitutional in a facial challenge either, so I don't think he's all that persuasive against facial challenges. The legal theory behind declaring laws unconstitutional is useful for Judges to keep in mind, but not game changing as a practical matter. The rules are also very clear and well-established:
As-Applied Challenge: The law is unconstitutional as to me.
Facial Challenge: The law could never be constitutional no matter who it is applied too.
First Amendment Facial Challenge: The law is either so broad or so vague to the point that it deters lawful speech and the Constitutional harm is because of the deterrence.

For the third category, waiting to see how a law is enforced is a bad idea because the law is chilling speech as long as there is a realistic possibility of enforcement. However, I do think a concession that the law would never be enforced in a particular problematic way should be sufficient to remedy the harm. But a law that chills speech and isn't remedied is Constitutionally suspect and, when litigating a case, a Court has the power to reason in an opinion that it is unenforceable because of this defect.

[David Nieporent]

However, I do think a concession that the law would never be enforced in a particular problematic way should be sufficient to remedy the harm.

Government officials often try to head off challenges by making such concessions. The problem is that those are rarely legally binding. The next prosecutor holding the job can repudiate that, unless there's an injunction preventing him from doing so.

[Jonathan Affleck]

Not only were the oral arguments fact free, but there was a dearth of knowledge about the technology.

The participants likened DM service to traditional email but thought that point-to-multipoint transport of a message by a social medium platform is somehow unlike traditional email even though traditional email provides point to multipoint transport of a message.

[David Nieporent]

It is, of course, entirely unlike traditional email. Technology is not relevant; function is.

[Jonathan Affleck]

According to someone that has never participated in a Title 35 and in a Title 47 litigation,

It is, of course, entirely unlike traditional email. Technology is not relevant; function is.

By the above logic, non-infringing creation of 3rd party equivalent products would be impossible.

State law and regulations continue to be relevant.

State regulation at the end-user point of presence by a communications common carrier was always explicit and implicit in the FCC framework that Title 47 created. The Telecommunications Act of 1996 did not change this two-tier framework but only made explicit communications common carriage that was not regulated by the FCC. Thus the Telecommunications Act of 1996 introduced the concepts of telecommunications service [47 U.S. Code § 153 - Definitions (53) Telecommunications service] and of information service [47 U.S. Code § 153 - Definitions (24) Information service]. Nothing in the legislative record indicates that Congress intended to exempt a social medium platform, which is an obvious communications common carrier, from 47 U.S. Code § 202 - Discriminations and preferences.

As far as I can tell, state regulators continue to use the traditional definition of a telegraph, and no federal statute has overridden this definition: "A telegraph service is a service that transmits a message electrically by wire or by wireless means." See Easylink Servs. Int'l, Inc. v. State Tax Appeals Tribunal, 101 A.D.3d 1180, 955 N.Y.S.2d 271, 2012 N.Y. Slip Op. 8366 (N.Y. App. Div. 2012). The operative rule or regulation is N.Y. Comp. Codes R. & Regs. tit. 20 § 527.2 (d). A social medium platform meets the definition of a telegraph service in NY and probably in every other state.

Since the start of US telegraph service in 1845, a state has been regulating what a communications common carrier must and must not transport. If someone believes there is much difference between the original telegraph service and the service, which a social medium platform provides, he must believe a social medium platform operates by magic.

The Texas and Florida laws, which regulate a social medium platform, are completely in line with the legal history of communications common carriage.

A lot of law must be clarified by full litigation. I hope the Supreme Court will remand both cases back to the trial court and order the Texas and Florida laws to be put into effect until Netchoice can show why they violate Title 47 or the US Constitution.

[Stephen Lathrop]

Unsurprisingly, lawyers, however legally conservative, will pronounce themselves incapable to understand Professor’s Bray’s principal thesis, expressed thus:

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.

Indeed, I confess myself incapable to understand why that otherwise excellent maxim ought to be confined only to 1A cases, which is a category where it might prove less useful and more dangerous, compared to, say, regulatory law. But then I notice, with surprise, how entangled with the 1A even regulatory policies have lately become, and on that basis at least understand Professor Bray’s choice of emphasis.

But before continuing, do understand what Bray intends. He objects to over-reliance on legal rationalism. Bray understands that license to empower rationalism has too great a tendency to invite and encourage policy making by the Supreme Court.

In former times—which Bray illustrates with examples—respect and insistence on behalf of the Cases and Controversies Clause erected a bulwark against judicial policy making. Today’s lawyers—boosted by Supreme Court encouragement, skip over that bulwark. They have thus grown accustomed to a heady diet of political power, and found it tasty and all-too energizing.

It is thus unsurprising if those lawyers respond with disappointment to a proposal that would cut them down to a lesser role—to empower them more as facilitators of clients’ interests—and to empower less any more-distant yearnings they cherish toward policy wisdom considered generally. But as the Constitution makes plain, that lesser role was the one intended.

As experience has shown, that still-ongoing experiment with over-empowered legal rationalism has undermined American constitutionalism. Aggrandizing power thus self-bestowed on the judiciary has been subtracted from the proper store of policy making power exercised by more-accountable political branches. Government as a whole has grown somewhat more powerful, and notably less accountable, as a result.

The very first step on the road to a remedy will be to figure out a means for Congress to discourage the Supreme Court from again and again pronouncing policy wisdom the intended focus of legal briefs brought before the Court. It may at first strike some as paradoxical, but the way to do it is to insist on good effects, or bad effects, particular to the parties in cases as the proper focus of briefs presented to the Court. The Court’s self-aggrandizing liberty to direct briefs toward a goal to optimize legal policy nationally must be curtailed. The lawyers presenting those cases are not the peoples’ tribunes, and neither are the justices deciding the cases.

[fafalone]

States should get to experiment by pissing all over free speech about what the entire world sees on social media? Or should every website create 50 sets of moderation for what a viewer in each state can see?

You definitely make the point about the problems with non-technical people trying to regulate the internet.

[Charles Nichols - CRTC]

Section 1 of the Thirteenth Amendment says, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

The logic of the author of this article entails that a law that legalizes slavery and involuntary servitude is not facially unconstitutional because there is some application of the law that does not violate the Constitution. Also, he seems to be saying that we should have to wait until we are enslaved before we can challenge the law.

[Stephen Lathrop]

If a hypothetical is unlikely to the point of near-impossibility, how much can it contribute to discussion of practical legal policy?

[Charles Nichols - CRTC]

It is a common method of testing the logic. Here is a simpler example for you of a law that exists and is enforced. California Penal Code section 25850(a) makes it a crime to carry a loaded firearm outside of one's home. Subsection (b) states that refusal to consent to the search of a firearm to see if it is loaded is probable cause for an arrest.

Notwithstanding how California courts have interpreted the application of the statute, there are valid applications* based on the plain text reading. And yet both are as facially unconstitutional as my slavery example. The author of this article would disagree.

*A valid application of (a) is punishing a person who does not have a 2A right. A valid application of (b) is a person on parole who has signed a Fourth Amendment waiver as a condition of his parole.

P.S. People who live under totalitarian governments are slaves. If you think that mine is "a hypothetical to the point of near-impossibility" then you haven't been paying attention to current events.

[Stephen Lathrop]

You think ours is a totalitarian government? I do pay attention to current events, and I will concede you two points:

1. A possibility of totalitarian U.S. government could be at stake in the next election. I think it is unlikely, but with too high a probability to ignore.

2. If worst comes to worst, and an interval of totalitarian government does happen in this nation, insistence on carrying private arms outside the home will be prominent among the goads which deliver it. And if it does come to pass, would-be arms carriers will thereafter be at notably greater risk than they ever have been previously of being forcibly disarmed by government.

[jdgalt1]

California (and similarly New York and Illinois) gun laws from about WW1 to the present day show why we ought to amend Article III to permit courts to preemptively strike down laws under at least some circumstances. In these three states the right to keep and bear arms has been violated for most people, for most of that time period, simply because their legislatures are willing to enact new anti-gun laws more often than courts have the opportunity to consider striking them down. A right that the system doesn't really protect is worse than none at all because it is a promise not kept.

[Stephen Lathrop]

jdgalt, from where I sit, reliance on present American constitutionalism seems to have delivered to the gun rights community more latitude than originalist Constitutional interpretation can justify. Don’t you agree?

Do you suppose a totalitarian-style government under Trump would afford more reliable or less reliable protection for gun rights? If you answer, try to consider what happens fairly shortly when rival totalitarians, with rival private militias, compete to replace Trump in the top spot.

[wnoise]

Like all totalitarian governments, it would deliver gun-rights to the favored, and prohibit them to the unfavored.