4
MOODY v. NETCHOICE, LLC
THOMAS, J., concurring in judgment
The common-carrier doctrine may have weighty implications for the trade associations’ claims. But, the same factual barriers that preclude the Court from assessing the
trade associations’ claims under our First Amendment
precedents also prevent us from applying the common-carrier doctrine in this posture. At a minimum, we would need
to pinpoint the regulated parties and specific conduct being
regulated. On remand, however, both lower courts should
continue to consider the common-carrier doctrine.
II
The opinions in these cases detail many of the considerable hurdles that currently preclude resolution of the trade
associations’ claims. See ante, at 9–10; ante, at 1–4
(BARRETT, J., concurring); post, at 22–32 (opinion of ALITO,
J.). The most significant problem of all, however, has yet to
be addressed: Federal courts lack authority to adjudicate
the trade associations’ facial challenges.
Rather than allege that the statutes impermissibly regulate them, the trade associations assert that H. B. 20 and
S. B. 7072 are actually unconstitutional in most or all of
their applications. This type of challenge, called a facial
challenge, is “an attack on a statute itself as opposed to a
particular application.” Los Angeles v. Patel, 576 U. S. 409,
415 (2015).
Facial challenges are fundamentally at odds with Article
III. Because Article III limits federal courts’ judicial power
to cases or controversies, federal courts “lac[k] the power to
pronounce that [a] statute is unconstitutional” as applied to
nonparties. Americans for Prosperity Foundation v. Bonta,
594 U. S. 595, 621 (2021) (THOMAS, J., concurring in part
and concurring in judgment) (internal quotation marks
omitted). Entertaining facial challenges in spite of that limitation arrogates powers reserved to the political branches
and disturbs the relationship between the Federal Government and the States. The practice of adjudicating facial