Munsch Hardt Authors Amicus Curiae Brief with Arguments Reflected in Recent Opinion from the Supreme Court of the United States

Jul 1, 2024

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 Monday’s opinion from the Supreme Court of the United States.

In Moody et al., v. NetChoice et al., the Supreme Court considered whether Florida and Texas’ laws limiting social media platforms’ ability to edit and censor user content violated the First Amendment. Moody, at 1. Instead of reaching the merits of the First Amendment arguments, the Supreme Court vacated and remanded both the Fifth and Eleventh Circuit cases “because neither Court of Appeals properly considered the facial nature of NetChoice’s challenge” to the laws. Moody, at 3. A facial challenge considers the laws’ application to all conceivable parties, and a law restricting a First Amendment freedom is unconstitutional on its face if “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 refusal to consider the constitutionality of the Florida and Texas laws on the merits, the Court expressed its doubts about NetChoice’s facial challenges. “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 that the number of “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.

Even if NetChoice loses on its facial challenges to the state laws, at least one justice has indicated that NetChoice may have the upper hand if it argues that the statutes are unconstitutional as applied to NetChoice’s members, like Facebook and YouTube. Specifically, Justice Barrett opined that “[i]f NetChoice’s members are concerned about preserving their editorial discretion with respect to the services on which they have focused throughout this litigation—e.g., Facebook’s Newsfeed and YouTube’s homepage—they would be better served bringing a First Amendment challenge as applied to those functions.” Moody, Barrett, J. (concurring), at 1. This observation is consistent with the Court’s general view that “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.

Like Justice Barrett, the Munsch team argued in the CAL brief that NetChoice’s claims should be brought in the form of as-applied challenges to the state laws. CAL Brief for Moody, at 18 (“Instead, the Platforms should . . . bring as-applied challenges to demonstrate how the statutes allegedly infringe on each Platform’s constitutional rights.”). While the Eleventh and Fifth Circuits will need to wrestle with the facial challenges on remand, social medial platforms now have a roadmap for asserting as-applied challenges when laws attempt to regulate a platform’s ability to censor user content. 

See below for additional information: 

CAL Amicus Brief

Supreme Court Opinion