12
MOODY v. NETCHOICE, LLC
ALITO, J., concurring in judgment
NetChoice had failed to show that “H. B. 20 is . . . unconstitutional in all its applications” because “a number” of
NetChoice’s members had conceded that the law did “not
burden or chill their speech”).
To clarify these and other “threshold issues,” Texas
moved for expedited discovery. Id., Doc. 20, at 1. The District Court granted Texas’s motion in part, but after one
month of discovery, it sided with NetChoice and enjoined
H. B. 20 in its entirety before it could go into effect. Texas
appealed, arguing that despite the District Court’s judgment to the contrary, “[l]aws requiring commercial entities
to neutrally host speakers generally do not even implicate
the First Amendment because they do not regulate the
host’s speech at all—they regulate its conduct.” Brief for
Appellant in No. 21–51178 (CA5), p. 16. The State also emphasized NetChoice’s alleged failure to show that H. B. 20
was unconstitutional in even a “ ‘substantial number of its
applications,’ ” the “bare minimum” showing that
NetChoice needed to make to prevail on its facial challenge.
E.g., Reply Brief in No. 21–51178 (CA5), p. 8 (quoting Americans for Prosperity Foundation v. Bonta, 594 U. S. 595, 615
(2021)).
A divided Fifth Circuit panel reversed, focusing primarily
on NetChoice’s failure to “even try to show that HB 20 is
‘unconstitutional in all of its applications.’ ” 49 F. 4th 439,
449 (2022) (quoting Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449 (2008)). The
court also accepted Texas’s argument that H. B. 20 “does
not regulate the Platforms’ speech at all” because “the Platforms are not ‘speaking’ when they host other people’s
speech.” 49 F. 4th, at 448. Finally, the court upheld the
law’s disclosure requirements on the ground that they involve the disclosure of the type of purely factual and uncontroversial information that may be compelled under Zauderer. 49 F. 4th, at 485.
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