The Court Might Gut a Key First Amendment Doctrine. Few Even Noticed.
In a little-noticed exchange, multiple Justices considered doing away with a doctrine that makes it easier to invalidate unconstitutional restrictions on speech.
In February, the Supreme Court heard arguments over the constitutionality of Texas’ and Florida’s social media laws — laws adopted to prohibit alleged political discrimination online by tech companies.
Court watchers have said the cases could define the future of the internet. That’s scary enough. As Justice Elena Kagan said during the argument, she and her colleagues “are not, like, the nine greatest experts on the internet.”
But the cases might do much more than that. During oral argument in Moody v. Netchoice, the Florida case, members of the Court raised an issue that wasn’t briefed: whether Netchoice, the industry group challenging the law, could mount what’s called an “overbreadth” challenge to the Florida statute.
Were the Court to roll back the overbreadth doctrine, it would dramatically reshape First Amendment law. The result would limit the ability of individuals to confront sweepingly unconstitutional statutes targeting individuals’ freedom of expression.
Without the availability of overbreadth challenges, obviously unconstitutional statutes could survive a court challenge if they had just a single constitutional application. Constitutional challenges to such statutes would have to play out in a whack-a-mole fashion. Each case would have limited consequence to the next. All the while, laws that most reasonable people recognize to be unconstitutional would remain in force.
The “Overbreadth” Doctrine
Overbreadth challenges are powerful weapons for parties challenging unconstitutional laws. Normally, a party can only mount a challenge to laws that infringe on their own rights. They can’t raise the rights of others.
The overbreadth doctrine is an important exception to this rule. (Some question how important.) It allows challengers to argue their rights and the rights of others. And it empowers courts to invalidate laws not only as they apply to a party in a case but in their entirety.
Because it’s such a strong antidote — it allows a court to invalidate a law adopted by democratically elected legislators after all — the bar to invoking the doctrine is high. A challenger normally has to show that under no circumstances can the challenged statute be applied constitutionally. This is called the Salerno standard.
The Salerno standard doesn’t apply to overbreadth challenges in speech cases though. Instead, all a litigant must show in First Amendment cases is that the statute prohibits a substantial amount of protected speech relative to the statute’s legitimate sweep. Even if the statute has constitutional applications, it can still be held unconstitutional in its entirety if a bunch of its other applications are unconstitutional.
That standard is much more forgiving than the Salerno standard. It’s one thing to have to show that a statute substantially infringes on protected speech even if it has some constitutional applications. It’s quite another thing to have to show that the statute simply has no constitutional application at all.
“It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion.”
The Court lowered the bar in speech cases because of this country’s historical commitment to freedom of expression. As the Court wrote when it first adopted the overbreadth doctrine, “It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion.”
In real terms, the Court’s lower standard in speech cases means that motivated parties can conduct “impact litigation.” They can sue over mostly unconstitutional laws targeting speech and aim to have them invalidated altogether to the benefit of everyone.
Recent challenges to book ban statutes are a perfect example. Where these statutes result in shelves being cleared of books — even some perfectly inoffensive ones — litigants can use the overbreadth doctrine to invalidate the statutes.
The Moody v. Netchoice Oral Argument
The overbreadth doctrine was not briefed in Moody. But Justice Thomas, who has argued for overruling the doctrine before, raised it in his first question to counsel.
Thomas asked counsel for Florida why Netchoice opted for bringing an overbreadth case when any one of its members could have brought a more narrow challenge as the law applied to them.
More concerning, he suggested that Netchoice would have to meet Salerno’s “no set of circumstances” test to win. “They haven’t shown that . . . there’s no way that this statute can be applied that’s consistent with the Constitution,” Thomas said.
Justice Jackson also suggested that Salerno should control. “My understanding,” she said, “is that, to strike down this statute as facially unconstitutional, we would have to conclude that there’s no possible way for this law to govern these entities and their conduct.”
Paul Clement, counsel for Netchoice, tried to move Jackson off that position. He explained that in First Amendment cases a challenged statute cannot be saved simply because “there’s one little [constitutional] application somewhere.”
Apparently, Clement was unsuccessful. Later in the argument, Jackson said that she did, in fact, think it was his obligation to show that the statute had no constitutional applications at all.
Clement tried again: “First of all, that’s not the standard with all due respect.” The Court had never applied the Salerno standard in a First Amendment case, he argued. If it chose to do so now, he said, Moody “would be the worst First Amendment case in this Court’s history if you started down that road.”
Clement is right that the Court has never adopted Salerno in a First Amendment case. But Jackson was not alone. The Chief Justice also seemed to think that Salerno applied. He asked Clement if the Court didn’t apply Salerno, what standard would it apply? Justice Alito and, to a lesser extent, Justice Barrett, expressed a similar sentiment.
The Future of Overbreadth
The Court’s incredulity as to nature of overbreadth challenges in First Amendment cases is striking. Two years ago, the Court made clear that the Salerno standard did not apply to First Amendment challenges. That’s been the rule for decades. Two years later, though, the Court seems to have forgotten this case law altogether.
Justice Jackson’s exchange is particularly worrisome. Just last year, she wrote in defense of the overbreadth doctrine. There she emphasized the “real and ever-present risk of continuing to have facially overbroad criminal statutes on the books” and lamented that the “number of people who have not exercised their right to speak out of fear of prosecution is, quite frankly, unknowable.”
Moody is not a criminal case. And the tech giants are hardly sympathetic parties. So maybe Jackson thinks that the interests in Moody should be weighed differently. But the Supreme Court’s main role is not to decide cases, but to decide issues. Its decisions have a large blast radius.
So this much is clear. If the Court limits the overbreadth doctrine in Moody, the public will be the loser. Importing the “no set of circumstances” Salerno standard into the Court’s First Amendment case law would upend the speech-protective approach that individuals have lived under for nearly a hundred years.
It would dramatically transfer power from individuals to the state by depriving individual litigants the power to attack a statute at its unconstitutional roots. All the while, it would incentivize legislators to insulate obviously unconstitutional laws by making them so broad that they also have some hypothetical lawful application that saves them from a challenge.
Some might argue this returns a democratic function to legislatures. Justice Thomas has made this very argument. But this assumes that legislatures are acting in good faith. If the last few years is any indication, that simply is not true.
The legislative history of the Florida social media law, one lower court judge observed, showed that the law was not passed for legitimate reasons. Instead, it was adopted because the state legislature deemed social media companies “too large and too liberal.”
If the Court does rollback the overbreadth doctrine, freedom of expression will be worse off. In the face of statutes imposing criminal or civil penalties for speech, speakers will have to decide whether speaking is really worth the risk.
And even if one person risks it and vindicates that choice in litigation through a finding that the statute is unconstitutional as applied to them, that ruling would leave the statute in place. So the risk for speaking will always linger for other speakers.
There are other ways to mount First Amendment challenges. Not all would be lost if the overbreadth doctrine was parred back. A statute might unconstitutionally discriminate among viewpoints or be unconstitutionally vague, for example.
Defending speech is about defending lines.
But defending speech is about defending lines. If the Court moves the overbreadth line now, it might move other speech-protective lines in the future. As politicians become more and more nakedly partisan, now is the worst time to start down that path.
