Making Sense of Justice Barrett's NetChoice Concurrence

I don't get the random questions Justice Barrett raises, and I'm not sure why she didn't mention her reservations in Hansen..

On Monday, I tried to make sense of the various opinions in Moody v. NetChoice. Really, nothing lines up. Everyone agrees that the lower courts failed to apply the proper standard for the facial challenge. But the Justices then sharply divide about what kind of instructions to provide the lower courts, even as they all profess some sort of minimalism. After Justice Alito (likely) lost the majority opinion, the entire case went schizophrenic.

Here, I'd like to write about the most confounding opinion in the lot: Justice Barrett's concurrence. Unlike in Trump v. United States, she joins the majority opinion in full. Presumably, she agrees with Part II concerning the facial analysis, but she doesn't say a word about that part. But she does expressly agree with the Court's First Amendment analysis:

I join the Court's opinion, which correctly articulates and applies our First Amendment precedent. 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.

I'm still perplexed by this concurrence. Justice Barrett loves to extol the virtues of minimalism, and not deciding more than is necessary. If the lower courts botched the facial analysis, that should have been the end of the road. The Court is usually not in the business of providing a preview of how the lower courts should decide the case, where the entire complaint will likely need to be refiled. Moreover, I agree with Justice Thomas that the facial analysis is jurisdictional, or at least quasi-jurisdictional. Why provide a sneak-peak on the merits after finding a jurisdictional problem?

The remainder of Justice Barrett's concurrence left me scratching my head some more. She goes through an entire discourse of how to think about issues that are not present here. For example, she describes an algorithm that, as far as I can tell, no one is putting forward:

But what if a platform's algorithm just presents automatically to each user whatever the algorithm thinks the user will like—e.g., content similar to posts with which the user previously engaged? See ante, at 22, n. 5. The First Amendment implications of the Florida and Texas laws might be different for that kind of algorithm. And what about AI, which is rapidly evolving? What if a platform's owners hand the reins to an AI tool and ask it simply to remove "hateful" content? If the AI relies on large language models to determine what is "hateful" and should be removed, has a human being with First Amendment rights made an inherently expressive "choice . . . not to propound a particular point of view"? Hurley, 515 U. S., at 575. In other words, technology may attenuate the connection between content-moderation actions (e.g., removing posts) and human beings' constitutionally protected right to "decide for [themselves] the ideas and beliefs deserving of expression, consideration, and adherence." Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 641 (1994) (emphasis added). So the way platforms use this sort of technology might have constitutional significance.

As I was reading this passage, my initial thought was, "why?" The thrust of the majority is the courts should only consider the claims actually presented (as applied), and not consider a sweep of technologies that are not presented (facial). Why then ponder technologies that NetChoice does not even offer? Justice Kagan's majority opinion explains that this issue is not relevant:

⁵We therefore do not deal here with feeds whose algorithms respond solely to how users act online—giving them the content they appear to want, without any regard to independent content standards. See post, at 2 (BARRETT, J., concurring).

Then Justice Barrett goes on another detour about potential foreign ownership of tech companies.

So a social-media platform's foreign ownership and control over its content-moderation decisions might affect whether laws overriding those decisions trigger First Amendment scrutiny. What if the platform's corporate leadership abroad makes the policy decisions about the viewpoints and content the platformwill disseminate? Would it matter that the corporation employs Americans to develop and implement content-moderation algorithms if they do so at the direction of foreign executives? Courts may need to confront such questions when applying the First Amendment to certain platforms.

Is she musing about the TikTok case here? I really have no idea. Why is any of this here?

This passage reminds me of her Fulton concurrence, where she raised a host of questions that really never mattered, and which she has shown no interest in revisiting since then. It was just makeweight to avoid overruling Smith.

Here is my sense of Justice Barrett, which may not make sense to those outside academia. But her type is typical. Let me describe. At a faculty workshop, a person presents a paper. A professor doesn't like the paper, but doesn't want to say anything harsh about it, so she raises a host of random questions about something completely different than what the paper was about–the dreaded comment is "this should be two papers"–and then shows no interest in whether those questions are ever answered.

Perhaps what confounds me the most is how Justice Barrett completely ignores her opinion in United States v. Hansen on the overbreadth doctrine. I praised that decision! One year earlier, she wrote that the overbreadth doctrine is extremely problematic:

For another, litigants mounting a facial challenge to a statute normally "must establish that no set of circumstances exists under which the [statute] would be valid." United States v. Salerno, 481 U. S. 739, 745 (1987) (emphasis added). Breaking from both of these rules, the overbreadth doctrine instructs a court to hold a statute facially unconstitutional even though it has lawful applications, and even at the behest of someone to whom the statute can be lawfully applied.

But in NetChoice, Barrett favorably cites Hansen, without any reservations:

The court must then find a way to measure the unconstitutional relative to the constitutional applications to determine whether the law "prohibits a substantial amount of protected speech relative to its plainly legitimate sweep." United States v. Hansen, 599 U. S. 762, 770 (2023) (internal quotation marks omitted).

One of the virtues of Justice Thomas is he will include string cites of all of his opinions explaining why doctrines should be changed. Justice Barrett's concurrences seem more like one-offs than a thread. Each case is a new day.

Justice Kagan, quite notably, does not even mention the overbreadth doctrine, even though she cites Hansen several times. Overbreadth is closely related to a facial challenge in the First Amendment context. I still think that doctrine is on borrowed time.

Update: Justice Barrett wrote the majority in Hansen. An earlier version of the post reflected that she wrote the concurrence.