Cite as: 603 U. S. ____ (2024)
15
ALITO, J., concurring in judgment
NetChoice’s attempt to use “the party presentation rules”
as grounds for blocking our consideration of the question
whether it satisfied the facial constitutionality test. Tr. of
Oral Arg. in No. 22–555, at 92.
Second, even if the States had not asked the lower courts
to reject NetChoice’s request for blanket relief, it would
have been improper for those courts to enjoin all applications of the challenged laws unless that test was met. “It is
one thing to allow parties to forfeit claims, defenses, or lines
of argument; it would be quite another to allow parties to
stipulate or bind [a court] to the application of an incorrect
legal standard.” Gardner v. Galetka, 568 F. 3d 862, 879
(CA10 2009); see also Kairys v. Southern Pines Trucking,
Inc., 75 F. 4th 153, 160 (CA3 2023) (“But parties cannot forfeit the application of ‘controlling law’ ”); United States v.
Escobar, 866 F. 3d 333, 339, n. 13 (CA5 2017) (per curiam)
(“ ‘A party cannot waive, concede, or abandon the applicable
standard of review’ ” (quoting Ward v. Stephens, 777 F. 3d
250, 257, n. 3 (CA5 2015)).
Represented by sophisticated counsel, NetChoice made
the deliberate choice to mount a facial challenge to both
laws, and in doing so, it obviously knew what it would have
to show in order to prevail. NetChoice decided to fight these
laws on these terms, and the Court properly holds it to that
decision.
——————
is “unlikely to prevail on the merits of [its] facial First Amendment
challenge”); Record in No. 4:21–CV–00220 (ND Fla.), Doc. 106, p. 30
(“Plaintiffs have not demonstrated that their members actually [express
a message],” so there is “not a basis for sustaining Plaintiffs’ facial constitutional challenge”); Reply Brief in No. 21–51178 (CA5), p. 8 (arguing
that NetChoice failed “to show at a bare minimum that [S. B. 20] is unconstitutional in a ‘substantial number of its applications’ ” (quoting
Americans for Prosperity Foundation v. Bonta, 594 U. S. 595, 615
(2021))); Record in No. 1:21–CV–00840 (WD Tex.), Doc. 39, p. 27 (because
“not all applications of H.B. 20 are unconstitutional,” “Plaintiffs’ delayed
facial challenge [can]not succeed”).
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