Case: 21-51178
Document: 00516474571
Page: 16
Date Filed: 09/16/2022
No. 21-51178
situations where it is not even clear the State itself would consider its law
applicable.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 382 (1992).
Or as one amicus puts it, the Platforms at this early stage may not use
borderline hypotheticals involving vile expression to pretermit consideration
of “what actually is at stake—namely, the suppression of domestic political,
religious, and scientific dissent.” Brief of Amicus Curiae Prof. Philip
Hamburger at 21.
In short, Section 7 chills no speech whatsoever. To the extent it chills
anything, it chills censorship. That is, Section 7 might make censors think
twice before removing speech from the Platforms in a viewpointdiscriminatory manner. But we cannot find any cases, from any court, that
suggest a would-be censor can bring a First Amendment overbreadth
challenge because a regulation chills its efforts to prohibit others from
speaking.
B.
We turn now to the merits of the Platforms’ First Amendment claim.
As always, we start with the original public meaning of the Constitution’s
text. We need not tarry long here because the Platforms—by pointing to no
evidence whatsoever on this point—do not contend that the First
Amendment’s history and original understanding provide any basis for
invalidating Section 7.
The First Amendment prevents the government from enacting laws
“abridging the freedom of speech, or of the press.” U.S. Const. amend. I;
see Gitlow v. New York, 268 U.S. 652 (1925) (incorporating this right against
the States). At the Founding and “[f ]or most of our history, speech and press
freedoms entailed two common-law rules—first, a prohibition on prior
restraints and, second, a privilege of speaking in good faith on matters of
public concern.” Jud Campbell, The Emergence of Neutrality, 131 Yale L.J.
16