I understand if you don’t think that the First Amendment is
an area where SCOTUS is really doing “law” as we were taught it, but as a
distraction for myself I have been thinking about (1) the idea that facial
challenges are strongly disfavored and (2) the idea that content-based speech
restrictions are presumptively unconstitutional. (2) might well be on its way
out anyway, and I think (1) will speed its demise, or at least make (2)
(hereinafter Reed) something of a dead letter.

Reed is probably still good law as to sign restrictions
like those in Reed, which were content-based on their face and applied
only to content. But I will note that the rule in Reed prohibited the
display of outdoor signs without a permit, but exempted 23 categories of signs
from that requirement. It seems like (with severability) the exemptions are
content-based, but the permit requirement itself isn’t.

Beyond Reed, what remains? Consider a law that bars speech
that creates a public disturbance. Presumably this is not facially
content-based, because a public disturbance can come from volume alone,
regardless of content. However, if applied to speech that creates a public
disturbance because of its content, I would guess that the application has to
survive strict scrutiny. And doctrines of vagueness and overbreadth, and their
concern with chilling protected speech—if we still care about that and not just
about chilling vigorous presidential action—might also bear on the validity of
the law, which could therefore still face a facial challenge.

The narrow tailoring inquiry of strict scrutiny (or the
reasonable tailoring inquiry of intermediate scrutiny) therefore might come at
a different point: when we’re comparing the permissible applications of the law
(overly loud noise) to the impermissible ones (speech that creates a public
disturbance because of its content). According to NetChoice, we are now
supposed to figure out if there are too many impermissible instances compared
to permissible ones. How? Tailoring suggests itself as an answer.

But it’s not the only answer. Consider the following hypothetical:
Free Speech Junction provides evidence that, under its public disturbance
ordinance, it has issued 50 tickets for noise-based violations and 1 ticket for
content-based violations. Does that mean that the impermissible applications
are substantially outweighed by the permissible applications, such that this is
a facially valid ordinance? Its neighboring polity, Nosy Neighborhood, issued
100 tickets for content-based violations and 20 tickets for noise-based
violations during the same period. Is its identical ordinance facially invalid?
Or should we look at the state-level or national data to figure out how to “count”
permissible applications?

Some of the Court’s discussion in NetChoice seems to suggest
that we should count services, or even subservices—if the law as applied to
Uber or Gmail isn’t content-based, that is a strike against facial invalidity. One
of the reasons this suggestion seems strange on its face is that it’s obvious
that Texas and Florida didn’t have any interest in covering Uber—such an
approach seems to reward overexpansive laws. Maybe here we should give extra
weight to what the legislature thought it was doing, since we know that
its key aim was impermissible per the Court majority.

Instead of counting services, which seems a lot like
counting number of citations, perhaps we could count functions. The Court notes
several differences among (probably) covered platforms. But even there we face
some problems: do Uber and Etsy perform the same function (selling off-site goods
or services) or different functions (selling rides and selling tangible and intangible
goods)? Is Discord providing a chat service, a UGC feed, or something else? Do
Discord and Reddit do the same things for First Amendment purposes? (Disclosure—I
submitted an amicus for Discord—cited by one of the bad concurrences, yay.)

Maybe we could do the same conceptual cut as I did for the
public disturbance law: content moderation done for expressive purposes versus
content moderation done for nonexpressive purposes. Stated that way—or, even
worse, stated the way the legislatures did, “censorship” done for expressive
purposes versus “censorship” done for nonexpressive purposes—it’s hard to
imagine how the latter might dominate enough to save the law. Perhaps Uber and
Etsy do remove a bunch of content for nonexpressive reasons, but even their
removals are often going to be because of pure content (Uber drivers or riders
who engage in racial slurs, for example, or Etsy merchandise that promotes Holocaust
denial).

I’m not optimistic that courts will have a good grasp on
this. As I said on Bluesky, people who can imagine that there exist “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” (n.
5) probably shouldn’t be making internet policy. Even AO3 and Wikipedia remove
stuff! And they do so in the service of ideologies that are far more centrally
held than any commercial service’s. They just don’t then apply a weighting
algorithm for displaying what they guess will keep the user happier/more
engaged.

Anyway, given the conceptual counting difficulties,
tailoring might seem like a good source for comparisons: the law is facially
invalid if a substantial number of its applications are content-based and don’t
survive strict scrutiny, and a more narrowly tailored law would get rid of most
of those invalid applications. But the majority doesn’t mention tailoring, only
comparison of valid to invalid applications, which gives courts maximum
flexibility to do what they will. And that, of course, is the true lesson of
this Term.

from Blogger http://tushnet.blogspot.com/2024/07/netchoice-and-calvinball-initial.html