At Volokh Conspiracy, Samuel Bray: More Facts, Please. From the introduction:
A striking characteristic of last month's oral arguments in the content-moderation cases was the uncertainty about facts. In Moody v. NetChoice and NetChoice v. Paxton, it was really unclear what the effect of the laws would be in practice. Which businesses and business models would be affected, and how—all of this was unclear, or at least it seemed so in the oral argument. (I will confess to not having followed the briefs in the cases.) And that lack of clarity affects the substantive questions, but also the questions about whether this should be considered a so-called "facial challenge."
There was debate at the oral argument about how much this was due to litigation decisions by the states. But it's also due to changes in how suits and remedies are conceptualized. There are so many pressures toward abstraction—preenforcement suits, broad injunctions, and major constitutional questions decided on appeals from preliminary injunctions. And there are other pressures toward abstraction that apply in other cases, such as state standing after Massachusetts v. EPA (on that, see Proper Parties, Proper Relief). Putting all this together means that major constitutional questions are increasingly decided in an essentially fact-free posture, which is a significant change from the way First Amendment cases used to be decided primarily when there was some kind of actual enforcement of the challenged statute. That's not good.
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This trend toward abstract, fact-free constitutional decisionmaking was on clear display in the content-moderation cases.
One good corrective would be to have more occasions where the Supreme Court or a court of appeals dissolves a preliminary injunction and remands the case for further proceedings, including trial once there has been some experience with the enforcement of the challenged statute or rule.
The post closes with quotes from Justices Scalia and Brennan (in agreement), including this from Scalia:
When a facial challenge is successful, the law in question is declared to be unenforceable in all its applications, and not just in its particular application to the party in suit. To tell the truth, it is highly questionable whether federal courts have any business making such a declaration. The rationale for our power to review federal legislation for constitutionality, expressed in Marbury v. Madison, 1 Cranch 137 (1803), was that we had to do so in order to decide the case before us. But that rationale only extends so far as to require us to determine that the statute is unconstitutional as applied to this party, in the circumstances of this case.
Agreed (but even more so). I don't see how facial challenges are at all compatible with an originalist understanding of the judicial power. The reasoning of a case may suggest that a law is unconstitutional in all its applications, but the judicial power is only to say that it cannot be applied in the situation and to the party before the court.
Posted at 6:08 AM