USCA11 Case: 23-13095 Document: 188-1 Date Filed: 12/01/2025 Page: 1 of 6
FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
No. 23-13095
In re:
GEORGIA SENATE BILL 202.
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-mi-55555-JPB
Before JORDAN, NEWSOM, Circuit Judges, and CORRIGAN,* District
Judge.
PER CURIAM:
Many states, including Georgia, have long relied on election
laws to protect voters from fraud, intimidation, and interference at
the polls. Pointing to a recent uptick in individuals and organizations handing out gifts to voters in line to cast their ballots, Georgia
* Honorable Timothy J. Corrigan, Senior United States District Judge for the
Middle District of Florida, sitting by designation.
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2 Opinion of the Court 23-13085
passed a law restricting this sort of gift-giving, which the state asserts is just a pretextual means of influencing voters or even buying
votes. The plaintiffs—assorted progressive advocacy groups—disagree. They emphasize that the distribution of things like food and
water to waiting voters communicates support of and solidarity for
voters waiting in line and is part of what they call “a rich tradition
of Black political activism.” That expression, they say, is entitled
to First Amendment protection.
Whatever the respective merits of the parties’ positions, we
are unable to reach them. All here agree that the plaintiffs brought,
and the district court entertained, a facial First Amendment challenge. The district court, though, never conducted the facial-challenge analysis that the Supreme Court’s recent decision in Moody v.
NetChoice, LLC, 603 U.S. 707 (2024), requires. Accordingly, we
VACATE the district court’s judgment and REMAND for further
proceedings consistent with Moody.
I
In 2021, Georgia passed the Election Integrity Act. See S.B.
202, 156th Leg., Reg. Sess. (Ga. 2021). The Act included a gift ban:
No person shall . . . give, offer to give, or participate
in the giving of any money or gifts, including, but not
limited to, food and drink, to an elector . . . nor shall
any person . . . establish or set up any tables or booths
on any day in which ballots are being cast:
(1) Within 150 feet of the . . . polling place . . . .;
(2) Within any polling place; or
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23-13085 Opinion of the Court 3
(3) Within 25 feet of any voter standing in line
to vote at any polling place.
O.C.G.A. § 21-2-414(a).
Following the gift ban’s enactment, several organizations
sued to enjoin its enforcement. They argued in their preliminaryinjunction motions that the gift bans were facially unconstitutional—in particular, that both the 150-foot buffer zone around
polling places and the 25-foot buffer zone around polling lines were
content-based speech regulations that violated the First Amendment.
The district court initially denied the plaintiffs’ requested relief. It found the 150-foot polling-place buffer zone satisfied First
Amendment scrutiny because (1) Georgia had compelling interests
in “restoring peace and order around the polls[,] protecting voters
from political pressure and intimidation[,] and supporting election
integrity,” and (2) the law was narrowly tailored in that it allowed
pro-voting speech within the buffer zone and handouts outside the
buffer zone. Although the court found that the “limitless” 25-foot
polling-line buffer zone failed strict scrutiny—due to the lack of tailoring to any “fixed line of demarcation”—it nevertheless declined
to enjoin the ban on the ground that doing so would disrupt the
2022 elections. As a consequence, both gift bans took effect during
the 2022 election cycle.
In May 2023, the plaintiffs renewed their preliminary-injunction motion, but only as to the 25-foot polling-line buffer zone.
Standing by the reasoning in its earlier order—and now without
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the risk of disrupting an upcoming election—the district court
granted the preliminary injunction. Importantly here—and consistent with the plaintiffs’ facial challenge—the court enjoined the
state defendants from enforcing the gift ban inside the 25-foot polling-line buffer zone against anyone.
The state defendants timely appealed. 1
II
We find that it would be inappropriate at this juncture to
address the merits of the plaintiffs’ First Amendment challenge.
Our reason is simple: It is undisputed here that the plaintiffs challenged the 25-foot-buffer-zone gift ban on its face rather than as applied specifically to their own activities. As the Supreme Court recently underscored in Moody v. NetChoice, LLC., “that decision
comes at a cost” because “facial challenges [are] hard to win.” 603
U.S. at 723. In particular, the Court clarified that a facial challenge
in the First Amendment context requires an “inquiry into how a
law works in all of its applications.” Id. at 744. To adjudicate a
facial First Amendment challenge, a court must first “assess the []
law[’s] scope” by charting out the full range of covered activities.
Id. at 724–25. It must then “decide which of the law[’s] applications
violate the First Amendment” and which do not. Id. at 725. Finally,
the court must weigh the constitutional applications against the
1 This appeal has since been consolidated with an appeal addressing another
provision of the same statute, which requires each absentee voter to print his
or her birthdate on the envelope containing his or her ballot. See In re: Georgia
Senate Bill 202, No. 23-13085. In this opinion, we address only the gift ban. USCA11 Case: 23-13095 Document: 188-1 Date Filed: 12/01/2025 Page: 5 of 6
23-13085 Opinion of the Court 5
unconstitutional ones. Id. While the “principal things regulated”
should get a heavier weight in this analysis, they shouldn’t be considered at the expense of the “sphere of other applications.” Id. at
726. A facial challenge will succeed only when “the law’s unconstitutional applications substantially outweigh its constitutional
ones.” Id. at 724.
The district court didn’t conduct the facial-challenge analysis
now required by Moody. 2 For instance, a critical question in this
case is whether Georgia’s gift ban targeted expressive conduct. Rather than answering that question by charting out “the full range
of activities,” id., the district court looked only to the plaintiffs’ own
line-relief efforts, focusing on the messages that voters said they
understood these efforts to be conveying. The same goes for the
downstream questions regarding content-neutrality, the requisite
level of scrutiny, and governmental interests and tailoring. With
respect to all those inquiries, the court failed to systematically assess the full sweep of the regulation and weigh the constitutional
against the unconstitutional applications. It instead emphasized
the plaintiffs’ particular activities and the overarching justifications
offered by the government—lumping together a narrow range of
applications and considering them as a whole without accounting
2 Moody was decided after the district court issued its preliminary injunction,
but we are required to apply the law as it exists at the time of our decision
absent manifest injustice. Cf. Bradley v. Sch. Bd. of City of Richmond, 416 U.S.
696, 711–12 (2006) (“[A] court is to apply the law in effect at the time it renders
its decision, unless doing so would result in manifest injustice . . . .” (citing
United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801))).
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for the First Amendment’s varying protections across different activities.
We decline to perform the Moody-prescribed facial-challenge
analysis in the first instance. Rather, we VACATE the judgment
of the district court and REMAND for further proceedings consistent with this opinion.