In The NetChoice Cases, Alito And His Buddies Are Wrong, But Even If They Were Right It May Not Matter, And That’s Largely Good News

I was worried after oral argument in the NetChoice cases that we were going to get a mess of a decision. Maybe it would give us the right result (the Florida and Texas laws remaining canceled), but with dicta that pulled its punches and gave future would-be censors some cover for their continued attacks on First Amendment rights. Instead we basically got the opposite, a somewhat meh result (it will take more litigation to do away with Florida and Texas’s laws, which therefore might partially survive), but with excellent, solid dicta—assuming, of course, that it even was dicta, as discussed further below.

Before continuing, first an explanation of what dicta is. Basically, it’s language in a decision that does not bear on the holding. When a court considers a legal question, it will ultimately hold Conclusion X for Reason Y. Dicta is language that isn’t part of the conclusion, or part of the rationale for the conclusion. It gets included in the decision because it gives context that helps the conclusion and rationale make more sense, but if the same conclusion could be reached without that language being included in the decision then it generally is considered dicta, and not part of the precedential holding. In other words, the holding is a declaration of what the law now is, and the dicta technically is not part of that law.

In his concurrence, Justice Alito, joined by Justices Thomas and Gorsuch, complain that the language from the decision that will be most helpful to future First Amendment challenges—namely, everything that did not lament that the plaintiffs had not brought a facial challenge—is just dicta, and thus not actually binding precedent.

The holding in these cases is narrow: NetChoice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional. Everything else in the opinion of the Court is nonbinding dicta.

Thomas also said the same in his own concurrence. It’s possible that they are right, and normally that sort of thing should matter. The courts are not supposed to give advisory opinions, and the roadmap Justice Kagan laid out in her majority opinion could be construed as an advisory opinion that basically gives future litigants a sneak peek as to what the Court would likely hold by the time a correctly-litigated case reached them.

But while normally that sort of thing should matter, I am not sure that it should matter here:

(A) This group of judicial nihilists has basically made sure that nothing matters. Oh, now they want to be formalists and follow standard rules of jurisprudence? They didn’t even manage to stick with them this term, or even this month (oh, sorry, I mean last month, when they couldn’t even manage to publish all their remaining opinions, even when extremely time-sensitive and supposedly “expedited”).

(B) It’s not like it’s the first time that dicta has ended up functioning as precedent, partly because it’s so hard to tell what is or isn’t dicta. Alito et al. could be right here, because the overall result – sending the cases back down to the lower courts to figure out if the facial challenge was brought correctly – would be the result even without all those extra sections in the opinion addressing the substantive First Amendment questions.

On the other hand, none of this First Amendment language may actually be extraneous, even if the holding is that the facial challenge was not correctly analyzed below, because the error the Court is concerned with still had to do with how the lower courts had applied the First Amendment.  So even if, for example, the Eleventh Circuit had applied it too broadly, negating more of the Florida statute than it should have, any negation can only happen when the First Amendment would demand it, so maybe it is necessary and proper for the Court to affirm here that there is no question that the First Amendment would apply, and thus the only thing at issue on remand is for the lower courts to consider how much it applies, and not whether it does.

(C) This strong First Amendment language may still actually be the holding. Especially because “whether the First Amendment applies” was what we expected the Court to rule on when it granted its review. It granted it “limited to Questions 1 and 2 presented by the Solicitor General in her brief for the United States as amicus curiae,” which were

1. Whether the laws’ content-moderation restrictions comply with the First Amendment.

2. Whether the laws’ individualized-explanation requirements comply with the First Amendment

Which is why there was a lot of surprise that so much attention was paid in oral argument to concerns about the facial challenge. And surprise is bad, because if the parties knew this issue was what the Court was worried about it could have briefed in a way that directly addressed the issue. Instead the parties briefed the questions the Court said it wanted to consider, and all this “dicta” answered those questions, so surely that answer was actually the Court’s essential holding, and the remand order really only an ancillary exercise of procedural power that the Court is often exercising every time it issues a ruling with an instruction for what should happen in the lower courts next.

(D) One of the concerns about dicta is that it can often be convoluting, rather than clarifying, and obscure what the court is actually trying to effect. Here, however, the true officiousness of this decision is that the Court even weighed in on the facial challenge issue at all. While the majority opinion complains about the sparse record on that point, these are crocodile tears because the case was not brought to it with that question in mind. Of course there was no record; it was not the issue that had been litigated below that now necessitated the Court’s review. To then suddenly and unilaterally choose to consider an un-litigated issue is the height of hubris and if anything itself functions as the actual dicta obscuring its much more important point, and the point it was called upon to make and promised to make when the Court had granted the review.

(E) Furthermore, even if Alito and company were right and all this great language expressed by Kagan really only functions as what is basically a Justice Kagan-penned amicus brief, applicable to any future case implicating the First Amendment rights of platforms, while it might not be precedent it is certainly at least persuasive authority that will influence future courts. It will not be easy to defend a censoring law seeking to constrain a platform’s First Amendment rights by arguing that Kagan’s robust First Amendment-defending language is not binding precedent, because even if courts are not forced to make decisions consistent with it, defenders of these laws will be hard pressed to argue that these courts should not do so, in the wake of Kagan’s clearly expressed observations that platforms have these rights and why they must have these rights.

The irony is that an example of very famous dicta we’re still contending with is dicta that also arose in the First Amendment context.  I speak of the the “fire in a crowded theater” trope. Consider the staying power of that language, which is not only a misstatement of law (whereas Kagan’s language is not) but also dicta from a decision that has since been entirely overturned! While much discourse about First Amendment jurisprudence continues to be polluted by that century-old throw-away line, with this new decision we now at least have some much more speech-protective language to inform these discussions and this time actually help insulate First Amendment rights from further onslaught.