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.
It's not good for the decisionmaking of the Court, if we really believe that cases make good law. And it's also not good as a democratic matter, because it prevents experimentation by elected legislatures. And these two problems intersect: if states could experiment, and their laws actually went into effect, then we could see what the results are. The parade of horribles might not have that many floats–or it might have more than could have been imagined. But either way the courts will be in a better position to assess what happened after a law goes into a effect and there has been a trial, instead of after preenforcement preliminary injunctions block the law from going into effect (I speak colloquially–a court can do no such thing). Without any actual enforcement of a law, the constitutional analysis rests on the hopes and fears about what enforcement would be. "If hopes were dupes, fears may be liars."
