Making Sense of the Moody Opinions In NetChoice

I think it is clear that Justice Alito lost the majority, but the resulting schizophrenic opinions still do not cohere.

Shortly after NetChoice was decided, I speculated that Justice Alito lost a majority opinion. Now, having had some time to stew on the case, I think my speculation is right, but the precise contours of the deliberations are complex.

Let's start with the easy part. All nine members of the Court agreed that both the Fifth and Eleventh Circuits failed to apply the proper standard for a facial challenge.

With the benefit of hindsight, this holding may seem obvious, but a lot of really smart people seemed to have missed the issue below. NetChoice was represented by Clement Murphy and Lehotsky Keller Cohn. This firm has some of the most gifted attorneys around. The panel opinions included Judges Andy Oldham and Kevin Newsom, two of the most brilliant lower court judges, who are total FedCourts nerds. Yet, despite all of this intellectual firepower, everyone apparently missed the boat.

If there was so much agreement on the Court, why did Justices Thomas, Alito, and Gorsuch not join the portions of Justice Kagan's majority opinion that concerned the facial challenge? The troika only concurred in the judgment.

Part II of Justice Kagan's majority opinion is very short. It stretches only three pages, and there are no subparts. The first three paragraphs lay out the usual standard for a facial challenge (Salerno), the somewhat-easier challenge for a facial challenge in the Free Speech context (AFP and Hansen), and explains that the lower courts did not heed these standards. Justice Kagan concluded:

On their way to opposing conclusions, [the Fifth and Eleventh Circuits] concentrated on the same issue: whether a state law can regulate the content-moderation practices used in Facebook's News Feed (or near equivalents). They did not address the full range of activities the laws cover, and measure the constitutional against the unconstitutional applications. In short, they treated these cases more like as-applied claims than like facial ones.

So far, so good. I think Justice Alito could have joined this analysis in its entirety. Justice Alito's concurrence described the holding of the case in such limited terms:

The holding in these cases is narrow: NetChoice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional.

The case could have ended here, and I think there would have been a unanimous reversal.

However, the next three paragraphs of Part II take an unexpected turn.

In the fourth paragraph, Justice Kagan previews the "first step in the proper facial analysis." She walks through a range of potential applications, such as Gmail, Etsy, and Venmo. None of this analysis was necessary to the holding, but at least it signaled how the facial analysis should proceed.

The fifth paragraph begins, "The next order of business is to decide which of the laws' applications violate the First Amendment, and to measure them against the rest." Here, Justice Kagan explains that "even on a preliminary record," the analysis would differ for the Facebook News Feed and direct messages. Again, I'm not sure this analysis was necessary, but it at least was in the ballpark.

The sixth paragraph cites Cutter v. Wilkinson, the Court's favorite precedent to cite when it doesn't want to address an issue in the first instance:

The problem for this Court is that it cannot undertake the needed inquiries. "[W]e are a court of review, not of first view." Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). Neither the Eleventh Circuit nor the Fifth Circuit performed the facial analysis in the way just described. And even were we to ignore the value of other courts going first, we could not proceed very far. The parties have not briefed the critical issues here, and the record is underdeveloped.

The opinion also could have ended here. And I think it would probably been unanimous. But Justice Kagan proceeds with Part III of her opinion. It stretches seventeen pages. And it explains virtually all facets of the First Amendment analysis. Why did it undertake that analysis? To prevent the Fifth Circuit from running afoul of the majority's understanding of the merits:

But it is necessary to say more about how the FirstAmendment relates to the laws' content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below. That need is especially stark for the Fifth Circuit. . . . If we said nothing about those views, the court presumably would repeat them when it next considers NetChoice's challenge. It would thus find that significant applications of the Texas law—and so significant inputs into the appropriate facial analysis—raise no First Amendment difficulties. But that conclusion would rest on a serious misunderstanding of First Amendment precedent and principle. The Fifth Circuit was wrong in concluding that Texas's restrictions on the platforms' selection, ordering, and labeling of third-party posts do not interfere with expression. And the court was wrong to treat as valid Texas's interest in changing the content of the platforms' feeds. Explaining why that is so will prevent the Fifth Circuit from repeating its errors as to Facebook's and YouTube's main feeds.

Huh? I can't square the invocation of Cutter in Part II, with the resolution of the First Amendment in Part III. Here, the majority was not a court of first view, but was a court of preview. Or to be more precise, they were nudging the judges of my beloved Fifth Circuit to do things a certain way. (As I will explain later, the Court's failure to even mention the "common carrier" doctrine makes this preview less-than-helpful.)

Kudos to Justice Jackson for not joining the bulk of Part III. She is exactly right:

In light of the high bar for facial challenges and the state of these cases as they come to us, I would not go on to treat either like an as-applied challenge and preview our potential ruling on the merits. Faced with difficult constitutional issues arising in new contexts on undeveloped records, this Court should strive to avoid deciding more than is necessary. See Ashwander v. TVA, 297 U. S. 288, 346–347 (1936) (Brandeis, J., concurring). In my view, such restraint is warranted today.

Justice Jackson has been fairly consistent on the theme of judicial minimalism. It is easy enough for her to do when she is the sixth vote. I'll wait for her to take this tact when she is the fifth vote.

Justice Barrett, who is usually a stickler for minimalism, joins Justice Kagan's frolic and detour through First Amendment law. At a minimum, this join seems consistent with Justice Barrett's practice of jettisoning her usual routines when the Fifth Circuit steps out of her bounds of decency.

Justice Alito's concurrence also faults the majority for previewing the merits ruling. He refers to all of Part III as "nonbinding dicta." Yet, Justice Alito still proceeds to offer a preview of his own First Amendment analysis:

I therefore turn to the question whether NetChoice established facial unconstitutionality, and I begin with the States' content-moderation requirements. To show that these provisions are facially invalid, NetChoice had to demonstrate that they lack a plainly legitimate sweep under the First Amendment. Our precedents interpretingthat Amendment provide the numerator (the number of unconstitutional applications) and denominator (the total number of possible applications) that NetChoice was required to identify in order to make that showing. Estimating the numerator requires an understanding of the First Amendment principles that must be applied here, and I therefore provide a brief review of those principles.

The opinions here are a bit schizophrenic. No one wants to address the merits but everyone addresses the merits, without actually deciding the merits. I'm still a bit confused how everything came together. Like with Rahimi, the Court uses the facial challenge analysis as a subtle way of reversing the Fifth Circuit, without having to decide the case on the same basis.

So what happened here? Here is my completely uninformed speculation. At conference, I think there was a unanimous support for finding that the lower courts erred on the facial analysis. And, given the assignment numbers, I think Justice Alito had the majority opinion. And I think Chief Justice Roberts assigned the opinion to Justice Alito. However, Alito's draft opinion did not simply address the facial issue. Instead, he too tried to provide a "preview" for the lower courts. And the Alito preview explains that it will be quite difficult for NetChoice to win in all regards, even with an as-applied challenge. Moreover, Justice Alito explains that the "common carrier" doctrine is at play here--something that Justice Kagan does not even discuss. (Seriously, the phrase "common carrier" does not appear anywhere in the majority opinion.)

Something about Justice Alito's opinion bothered Justice Barrett. I think she convinced herself that the Fifth Circuit has to be wrong, and did not want to join anything even suggesting that the Fifth Circuit was right. I suspect she took some pride in writing this sentence, which was totally gratuitous considering the posture:

In this respect, the Eleventh Circuit's understanding of the First Amendment's protection of editorial discretion was generally correct; the Fifth Circuit's was not.

Meanwhile, Justice Kagan wrote the sort of concurrence a law professor would love. Kagan explains that this case follows naturally from Tornillo, Hurley, and PG&E, so there is nothing new to do here. Everything is as it was before. This sort of framing would have been perfect for Justice Barrett. Kagan even included a reference to "adolescents' metal health"--catnip for the mom of seven. At some point, Barrett jumped ship. And, I suspect the Chief Justice followed suit, because he will never pass up an opportunity to show the Court is bipartisan. And Justice Kavanaugh did not want to be on his own, so he also decamped. Justice Kagan then had to scramble together Part II of her opinion, which really did not cohere, but it didn't matter.

Alas, Justice Alito had to rewrite his majority opinion into a concurrence. He nearly broke the fourth wall with this sentence:

For these reasons, I am therefore compelled to provide a more complete discussion of those matters than is customary in an opinion that concurs only in the judgment.

I'll have more to say about this case in other writings. But I think this lays out how the opinions came to be.