Case: 21-51178
Document: 00516474571
Page: 14
Date Filed: 09/16/2022
No. 21-51178
(2020) (Thomas, J., concurring) (explaining that overbreadth doctrine
“allow[s] individuals to challenge a statute based on a third party’s
constitutional rights”). Courts have deemed this chilling effect on third
parties particularly worrisome when the overbroad law imposes criminal
sanctions. See, e.g., Gooding v. Wilson, 405 U.S. 518, 521 (1972).
This rationale for overbreadth adjudication is wholly inapposite here.
First of all, there are no third parties to chill. The plaintiff trade associations
represent all the Platforms covered by HB 20. Additionally, unlike individual
citizens potentially subject to criminal sanctions—the usual beneficiaries of
overbreadth rulings—the entities subject to HB 20 are large, well-heeled
corporations that have hired an armada of attorneys from some of the best
law firms in the world to protect their censorship rights. And any fear of
chilling is made even less credible by HB 20’s remedial scheme. Not only are
criminal sanctions unavailable; damages are unavailable. It’s hard to see how
the Platforms—which have already shown a willingness to stand on their
rights—will be so chilled by the prospect of declaratory and injunctive relief
that a facial remedy is justified.
Third, the Platforms principally argue against HB 20 by speculating
about the most extreme hypothetical applications of the law. Such
whataboutisms further exemplify why it’s inappropriate to hold the law
facially unconstitutional in a pre-enforcement posture.
Texas enacted HB 20 to address “the Platforms’ evolution into
internet censors.” Explaining the perceived need for the law, Texas and its
amici cite numerous instances in which the Platforms have censored what
Texas contends is pure political speech. For example, one amicus brief
documents the Platforms’ censorship of fifteen prominent celebrities and
political figures—including five holding federal elected office. See Brief for
Amici Curiae The Babylon Bee, LLC, et al. at 26–38. Texas also points to the
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