Case: 21-51178
Document: 00516474571
Page: 11
Date Filed: 09/16/2022
No. 21-51178
Act” must “establish that no set of circumstances exists under which the Act
would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987); see also
Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2387 (2021). “Such
a challenge is the most difficult to mount successfully.” City of El Cenizo v.
Texas, 890 F.3d 164, 187 (5th Cir. 2018) (quotation omitted). The Platforms
do not even try to show that HB 20 is “unconstitutional in all of its
applications.” Wash. State Grange, 552 U.S. at 449. 4
Instead, their challenge is premised on First Amendment overbreadth
doctrine. Under this doctrine, the Supreme Court has “recognized a second
type of facial challenge, whereby a law may be invalidated as overbroad if a
substantial number of its applications are unconstitutional, judged in relation
to the statute’s plainly legitimate sweep.” Bonta, 141 S. Ct. at 2387 (quotation
omitted). This doctrine is limited to “the First Amendment context.” Ibid.
“Overbreadth is a judicially created doctrine designed to prevent the
chilling of protected expression.” Massachusetts v. Oakes, 491 U.S. 576, 584
(1989) (plurality op.); see generally Lewis D. Sargentich, Note, The First
Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844 (1970). As the
seminal case explained, the overbreadth doctrine addresses “threat[s] to
censure comments on matters of public concern.” Thornhill v. Alabama, 310
U.S. 88, 97 (1940). The doctrine’s rationale is that “[m]any persons, rather
than undertake the considerable burden (and sometimes risk) of vindicating
their rights through case-by-case litigation, will choose simply to abstain from
protected speech—harming not only themselves but society as a whole,
4
For example, the Platforms do not argue that HB 20’s provision restricting
censorship based on “a user’s geographic location in [Texas]” could not be constitutionally
applied to them. Tex. Civ. Prac. & Rem. Code § 143A.002(a)(3). While they
vigorously argue that viewpoint-based censorship is protected speech, they nowhere
contend that the First Amendment protects censorship based on geographic location.
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