United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED November 7, 2024 No. 21-51178 Lyle W. Cayce ____________ Clerk NetChoice, L.L.C., a 501(c)(6) District of Columbia organization doing business as NetChoice; Computer & Communications Industry Association, a 501(c)(6) non-stock Virginia Corporation doing business as CCIA,

Plaintiffs—Appellees,

versus Ken Paxton, in his official capacity as Attorney General of Texas,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 1:21-CV-840 ______________________________

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before Jones, Southwick, and Oldham, Circuit Judges. Andrew S. Oldham, Circuit Judge: In Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024), the Supreme Court emphasized that facial challenges to state laws are difficult to success- fully mount. In the First Amendment context, such challenges require a court to “explore the law[’s] full range of applications—the constitutionally Case: 21-51178 Document: 361-1 Page: 2 Date Filed: 11/07/2024

No. 21-51178

impermissible and permissible both—and compare the two sets.” Id. at 2398 (emphasis added). Plaintiffs can meet this burden “only if the law’s uncon- stitutional applications substantially outweigh its constitutional ones.” Id. at 2397. As the Supreme Court recognized, it is impossible to apply that stand- ard here because “the record is underdeveloped.” Id. at 2399. Who is cov- ered by Texas House Bill 20 (“H.B. 20”)? For these actors, which activities are covered by H.B. 20? For these covered activities, how do the covered ac- tors moderate content? And how much does requiring each covered actor to explain its content-moderation decisions burden its expression? Because these are fact-intensive questions that must be answered by the district court in the first instance after thorough discovery, we remand. * The Court in Moody repeated a familiar refrain: “facial challenges are disfavored.” Id. at 2409. There are a “host of good reasons” for this judicial skepticism. Id. at 2397. For example, facial challenges “rest on speculation,” ibid. (quotation omitted), “short circuit the democratic process,” ibid. (quo- tation omitted), and sit uncomfortably with Article III, see id. at 2413 (Thomas, J., concurring in the judgment). Because of the significant risks as- sociated with facial challenges—even those under the First Amendment— challengers bear a heavy burden. See id. at 2397 (majority opinion); id. at 2409 (Barrett, J., concurring) (“[T]hese cases illustrate the dangers of bringing a facial challenge. . . . In fact, dealing with a broad swath of varied platforms and functions in a facial challenge strikes me as a daunting, if not impossible, task.”); id. at 2411 (Jackson, J., concurring in part and concurring in the judg- ment) (“[A]s all Members of the Court acknowledge, plaintiffs bringing a fa- cial challenge must clear a high bar.”); id. at 2428 (Alito, J., concurring in the judgment) (“Facial challenges also strain the l