14
MOODY v. NETCHOICE, LLC
ALITO, J., concurring in judgment
sweep.” ’ ” Washington State Grange, 552 U. S., at 449. In
First Amendment cases, we have sometimes phrased the
requirement as an obligation to show that a law “ ‘prohibits
a substantial amount of protected speech’ ” relative to its
‘ “plainly legitimate sweep.’ ” Hansen, 599 U. S., at 770;
Bonta, 594 U. S., at 615; United States v. Williams, 553
U. S. 285, 292–293 (2008).14
NetChoice and the Federal Government urge us not to
apply any of these demanding tests because, they say, the
States disputed only the “threshold question” whether their
laws “cover expressive activity at all.” Tr. of Oral Arg. in
No. 22–277, at 76; see also id., at 84, 125; Tr. of Oral Arg.
in No. 22–555, at 92. The Court unanimously rejects that
argument—and for good reason.
First, the States did not “put all their eggs in [one] basket.” Tr. of Oral Arg. in No. 22–277, at 76. To be sure, they
argued that their newly enacted laws were valid in all their
applications. Ibid. Both the Federal Government and the
States almost always defend the constitutionality of all provisions of their laws. But Florida and Texas did not stop
there. Rather, as noted above, they went on to argue that
NetChoice had failed to make the showing required for a
facial challenge.15 Therefore, the record does not support
——————
14 At oral argument, NetChoice represented that “it’s the plainly legitimate sweep test, which is not synonymous with overbreadth,” that governs these cases. See Tr. of Oral Arg. in No. 22–277, p. 70; contra, ante,
at 9 (suggesting that the overbreadth doctrine applies to all facial challenges brought under the First Amendment, including these cases). This
representation makes sense given that the overbreadth doctrine applies
only when there is “a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties
not before the Court.” Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 801 (1984). And here, NetChoice appears
to represent all—or nearly all—regulated parties.
15 See Reply Brief in No. 21–12355 (CA11), p. 15 (“Plaintiffs—in their
facial challenge—have failed to demonstrate that even a significant subset of covered social media platforms engages in [expressive] conduct.”
See also Brief for Appellants in No. 21–12355 (CA11), p. 20 (NetChoice
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