Moody v. NetChoice, LLC

P R E L I M I N A R Y P R I N T
Volume 603 U. S. Part 1
Pages 707–798
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
July 1, 2024
REBECCA A. WOMELDORF
reporter of decisions
Page Proof Pending Publication
N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

OCTOBER
TERM, 2023
707
Syllabus
MOODY, ATTORNEY GENERAL OF FLORIDA, et al.
v
. NETCHOICE, LLC, dba NETCHOICE, et al.
certiorari to the united states court of appeals for
the eleventh circuit
No. 22–277. Argued February 26, 2024—Decided July 1, 2024*
In 2021, Florida and Texas enacted statutes regulating large social-media
companies and other internet platforms. The States' laws differ in the
entities they cover and the activities they limit. But both curtail the
platforms' capacity to engage in content moderation—to flter, prioritize,
and label the varied third-party messages, videos, and other content
their users w ish to post. Both laws a lso i nclude i ndiv idua li zed-
explanation provisions, requiring a platform to give reasons to a user if
it removes or alters her posts.
NetChoice LLC and the Computer & Communications Industry Asso-
ciation (collectively, NetChoice)—trade associations whose members in-
clude Facebook and YouTube—brought facial First Amendment chal-
lenges against the two laws. District courts in both States entered
preliminary injunctions.
The Eleventh Circuit upheld the injunction of Florida's law, as to all
provisions relevant here. The court held that the State's restrictions
on content moderation trigger First Amendment scrutiny under this
Court's cases protecting “editorial discretion.” 34 F. 4th 1196, 1209,
1216. The court then concluded that the content-moderation provi-
sions are unlikely to survive heightened scrutiny. Id., at 1227–1228.
Similarly, the Eleventh Circuit thought the statute's individualized-
explanation requirements likely to fall. Relying on Zauderer v. Offce
of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, the
court held that the obligation to explain “millions of [decisions] per day”
is “unduly burdensome and likely to chill platforms' protected speech.”
34 F. 4th, at 1230.
The Fifth Circuit disagreed across the board, and so reversed the
preliminary injunction of the Texas law. In that court's view, the plat-
forms' content-moderation activities are “not speech” at all, and so do
not implicate the First Amendment. 49 F. 4th 439, 466, 494. But even
if those activities were expressive, the court determined the State could
*Together with No. 22–555, NetChoice, LLC, dba NetChoice, et al. v.
Paxton, Attorney General of Texas, on certiorari to the United States
Court of Appeals for the Fifth Circuit.
Page Proof Pending Publication

Page Proof Pending Publication
708 MOODY
v. NETCHOICE, LLC
Syllabus
regulate them to advance its interest in “protecting a diversity of
i
deas. ” Id., at 482. The cour t fur ther held that the st atute's
individualized-explanation provisions would likely survive, even assum-
ing the platforms were engaged in speech. It found no undue burden
under Zauderer because the platforms needed only to “scale up” a
“complaint-and-appeal process” they already used. 49 F. 4th, at 487.
Held: The judgments are vacated, and the cases are remanded, because
neither the Eleventh Circuit nor the Fifth Circuit conducted a proper
analysis of the facial First Amendment challenges to Florida and Texas
laws regulating large internet platforms. Pp. 723–745.
(a) NetChoice's decision to litigate these cases as facial challenges
comes at a cost. The Court has made facial challenges hard to win. In
the First Amendment context, a plaintiff must show that “a substantial
number of [the law's] applications are unconstitutional, judged in relation
to the statute's plainly legitimate sweep.” Americans for Prosperity
Foundation v. Bonta, 594 U. S. 595, 615.
So far in these cases, no one has paid much attention to that issue.
Analysis and arguments below focused mainly on how the laws applied
to the content-moderation practices that giant social-media platforms
use on their best-known services to flter, alter, or label their users'
posts, i. e., on how the laws applied to the likes of Facebook's News
Feed and YouTube's homepage. They did not address the full range of
activities the laws cover, and measure the constitutional against the
unconstitutional applications.
The proper analysis begins with an assessment of the state laws'
scope. The laws appear to apply beyond Facebook's News Feed and its
ilk. But it's not clear to what extent, if at all, they affect social-media
giants' other services, like direct messaging, or what they have to say
about other platforms and functions. And before a court can do any-
thing else with these facial challenges, it must “determine what [the
law] covers.” United States v. Hansen, 599 U. S. 762, 770.
The next order of business is to decide which of the laws' applications
violate the First Amendment, and to measure them against the rest.
For the content-moderation provisions, that means asking, as to every
covered platform or function, whether there is an intrusion on protected
editorial discretion. And for the individualized-explanation provisions,
it means asking, again as to each thing covered, whether the required
disclosures unduly burden expression. See Zauderer, 471 U. S., at 651.
Because this is “a court of review, not of frst view,” Cutter v. Wilkin-
son, 544 U. S. 709, 718, n. 7, this Court cannot undertake the needed
inquiries. And because neither the Eleventh nor the Fifth Circuit per-

Page Proof Pending Publication
Cite
as: 603 U. S. 707 (2024)
709
Syllabus
formed the facial analysis in the way described above, their decisions
must
be vacated and the cases remanded. Pp. 723–726.
(b) It is necessary to say more about how the First Amendment re-
lates to the laws' content-moderation provisions, to ensure that the fa-
cial analysis proceeds on the right path in the courts below. That need
is especially stark for the Fifth Circuit, whose decision rested on a seri-
ous misunderstanding of First Amendment precedent and principle.
Pp. 726–743.
(1) The Court has repeatedly held that ordering a party to provide
a forum for someone else's views implicates the First Amendment if,
though only if, the regulated party is engaged in its own expressive
activity, which the mandated access would alter or disrupt. First, in
Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, the Court held
that a Florida law requiring a newspaper to give a political candidate a
right to reply to critical coverage interfered with the newspaper's “exer-
cise of editorial control and judgment.” Id., at 243, 258. Florida could
not, the Court explained, override the newspaper's decisions about the
“content of the paper” and “[t]he choice of material to go into” it, be-
cause that would substitute “governmental regulation” for the “crucial
process” of editorial choice. Id., at 258. The next case, Pacifc Gas &
Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S. 1, involved Califor-
nia's attempt to force a private utility to include material from a certain
consumer-advocacy group in its regular newsletter to consumers. The
Court held that an interest in “offer[ing] the public a greater variety of
views” could not justify compelling the utility “to carry speech with
which it disagreed” and thus to “alter its own message.” Id., at 11, n. 7,
12, 16. Then in Turner Broadcasting System, Inc. v. FCC, 512 U. S.
622, the Court considered federal “must-carry” rules, which required
cable operators to allocate certain channels to local broadcast stations.
The Court had no doubt the First Amendment was implicated, because
the rules “interfere[d]” with the cable operators' “editorial discretion
over which stations or programs to include in [their] repertoire.” Id., at
636, 643–644. The capstone of this line of precedents, Hurley v. Irish-
American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S.
557, held that the First Amendment prevented Massachusetts from com-
pelling parade organizers to admit as a participant a gay and lesbian
group seeking to convey a message of “pride.” Id., at 561. It held that
ordering the group's admittance would “alter the expressive content of
the[ ] parade,” and that the decision to exclude the group's message was
the organizers' alone. Id., at 572–574.
From that slew of individual cases, three general points emerge.
First, the First Amendment offers protection when an entity engaged

Page Proof Pending Publication
710 MOODY
v. NETCHOICE, LLC
Syllabus
in compiling and curating others' speech into an expressive product of
its
own is directed to accommodate messages it would prefer to exclude.
Second, none of that changes just because a compiler includes most
items and excludes just a few. It “is enough” for the compiler to ex-
clude the handful of messages it most “disfavor[s].” Id., at 574. Third,
the government cannot get its way just by asserting an interest in bet-
ter balancing the marketplace of ideas. In case after case, the Court
has barred the government from forcing a private speaker to present
views it wished to spurn in order to rejigger the expressive realm.
Pp. 727–733.
(2) “[W]hatever the challenges of applying the Constitution to ever-
advancing technology, the basic principles” of the First Amendment “do
not vary.” Brown v. Entertainment Merchants Assn., 564 U. S. 786,
790. And the principles elaborated in the above-summarized decisions
establish that Texas is not likely to succeed in enforcing its law against
the platforms' application of their content-moderation policies to their
main feeds.
Facebook's News Feed and YouTube's homepage present users with
a continually updating, personalized stream of other users' posts. The
key to the scheme is prioritization of content, achieved through algo-
rithms. The selection and ranking is most often based on a user's ex-
pressed interests and past activities, but it may also be based on other
factors, including the platform's preferences. Facebook's Community
Standards and YouTube's Community Guidelines detail the messages
and videos that the platforms disfavor. The platforms write algorithms
to implement those standards—for example, to prefer content deemed
particularly trustworthy or to suppress content viewed as deceptive.
Beyond ranking content, platforms may add labels, to give users addi-
tional context. And they also remove posts entirely that contain pro-
hibited subjects or messages, such as pornography, hate speech, and
misinformation on certain topics. The platforms thus unabashedly con-
trol the content that will appear to users.
Texas's law, though, limits their power to do so. Its central provision
prohibits covered platforms from “censor[ing]” a “user's expression”
based on the “viewpoint” it contains. Tex. Civ. Prac. & Rem. Code
Ann. § 143A.002(a)(2). The platforms thus cannot do any of the things
they typically do (on their main feeds) to posts they disapprove—can-
not demote, label, or remove them—whenever the action is based on
the post's viewpoint. That limitation profoundly alters the platforms'
choices about the views they convey.
The Court has repeatedly held that type of regulation to interfere
with protected speech. Like the editors, cable operators, and parade
organizers this Court has previously considered, the major social-media

Page Proof Pending Publication
Cite
as: 603 U. S. 707 (2024)
711
Syllabus
platforms curate their feeds by combining “multifarious voices” to cre-
ate
a distinctive expressive offering. Hurley, 515 U. S., at 569. Their
choices about which messages are appropriate give the feed a particular
expressive quality and “constitute the exercise” of protected “editorial
control.” Tornillo, 418 U. S., at 258. And the Texas law targets those
expressive choices by forcing the platforms to present and promote con-
tent on their feeds that they regard as objectionable.
That those platforms happily convey the lion's share of posts sub-
mitted to them makes no signifcant First Amendment difference. In
Hurley, the Court held that the parade organizers' “lenient” admissions
policy did “not forfeit” their right to reject the few messages they found
harmful or offensive. 515 U. S., at 569. Similarly here, that Facebook
and YouTube convey a mass of messages does not license Texas to pro-
hibit them from deleting posts they disfavor. Pp. 733–740.
(3) The interest Texas relies on cannot sustain its law. In the
usual First Amendment case, the Court must decide whether to apply
strict or intermediate scrutiny. But here, Texas's law does not pass
even the less stringent form of review. Under that standard, a law
must further a “substantial governmental interest” that is “unrelated to
the suppression of free expression.” United States v. O'Brien, 391 U. S.
367, 377. Many possible interests relating to social media can meet that
test. But Texas's asserted interest relates to the suppression of free
expression, and it is not valid, let alone substantial.
Texas has never been shy, and always been consistent, about its inter-
est: The objective is to correct the mix of viewpoints that major plat-
forms present. But a State may not interfere with private actors'
speech to advance its own vision of ideological balance. States (and
their citizens) are of course right to want an expressive realm in which
the public has access to a wide range of views. But the way the First
Amendment achieves that goal is by preventing the government from
“tilt[ing] public debate in a preferred direction,” Sorrell v. IMS Health
Inc., 564 U. S. 552, 578–579, not by licensing the government to stop
private actors from speaking as they wish and preferring some views
over others. A State cannot prohibit speech to rebalance the speech
market. That unadorned interest is not “unrelated to the suppression
of free expression.” And Texas may not pursue it consistent with the
First Amendment. Pp. 740–743.
No. 22–277, 34 F. 4th 1196; No. 22–555, 49 F. 4th 439, vacated and
remanded.
Kagan, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Sotomayor, Kavanaugh, and Barrett, JJ., joined in full, and in
which Jackson, J., joined as to Parts I, II, and III–A. Barrett, J., fled

712 MOODY
v. NETCHOICE, LLC
Syllabus
a concurring opinion, post, p. 745. Jackson, J., fled an opinion concurring
i
n part and concurring in the judgment, post, p. 748. Thomas, J., fled an
opinion concurring in the judgment, post, p. 749. Alito, J., fled an opin-
ion concurring in the judgment, in which Thomas and Gorsuch, JJ.,
joined, post, p. 766.
Henry C. Whitaker, Solicitor General of Florida, argued
the cause for petitioners in No. 22–277. With him on the
briefs were Ashley Moody, Attorney General, Daniel W. Bell
and Jeffrey Paul DeSousa, Chief Deputy Solicitors General,
Christopher J. Baum, Senior Deputy Solicitor General,
Kevin A. Golembiewski and Evan Ezray, Deputy Solicitors
General, Darrick W. Monson and Alison E. Preston, Assist-
ant Solicitors General, Charles J. Cooper, David H. Thomp-
son, Brian W. Barnes, and John D. Ohlendorf.
Paul D. Clement argued the cause for respondents in No.
22–277 and petitioners in No. 22–555. With him on the
briefs in both cases were Erin E. Murphy and James Y. Xi.
With him on the briefs in No. 22–555 were Scott A. Keller
and Steven P. Lehotsky.
Solicitor General Prelogar argued the cause for the
United States as amicus curiae urging affrmance in No. 22–
277 and reversal in No. 22–555. With her on the brief were
Principal Deputy Assistant Attorney General Boynton,
Deputy Solicitor General Fletcher, Colleen E. Roh Sinzdak,
Mark R. Freeman, Daniel Tenny, and Daniel Winik.
Aaron L. Nielson, Solicitor General of Texas, argued the
cause for respondent in No. 22–555. With him on the brief
were Ken Paxton, Attorney General, Lanora C. Pettit, Prin-
cipal Deputy Solicitor General, Michael R. Abrams and
William F. Cole, Assistant Solicitors General, Coy Allen
Westbrook, Assistant Attorney General, Brent Webster, First
Assistant Attorney General, and Ryan S. Baasch, Chief,
Consumer Protection Division.†
†Briefs of amici curiae urging reversal in No. 22–277 and affrmance in
No. 22–555 were fled in both cases for American Principles Project by
Theodore M. Cooperstein; for Amicus Populi by Mitchell Keiter; for the
Babylon Bee, LLC, et al. by Patrick Strawbridge, Kelly J. Shackel ford,
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
713
Opinion of the Court
Justice Kagan delivered the opinion of the Court.‡
N
ot even thirty years ago, this Court felt the need to ex-
plain to the opinion-reading public that the “Internet is an
Jeffrey C. Mateer, David J. Hacker, and Jeremiah G. Dys; for the Heart-
land Institute by James R. Lawrence III; for iTexasPolitics, LLC, dba The
Texan, et al. by Evan M. Goldberg; for Legal Scholars Adam Candeub
et al. by Kenneth J. Weatherwax and Gregory R. Smith; for The Ruther-
ford Institute by John W. Whitehead; for the World Faith Foundation by
James L. Hirsen and Deborah J. Dewart; and for Eric Rasmusen by James
Bopp, Jr.
Briefs of amici curiae urging affrmance in No. 22–277 and reversal in
No. 22–555 were fled in both cases for the American Jewish Committee
by Michael J. Gottlieb and Aaron E. Nathan; for the Americans for Pros-
perity Foundation by Cynthia Fleming Crawford; for Article 19: Global
Campaign for Free Expression et al. by Megan Coker and Kelli Bills; for
the Cato Institute by Thomas A. Berry and Anastasia P. Boden; for the
Center for Democracy & Technology by Andrew J. Pincus; for the Center
for Growth and Opportunity et al. by Andrew C. Nichols; for the Chamber
of Commerce of the United States of America by Michael R. Dreeben and
Jennifer B. Dickey; for Chamber of Progress et al. by Mark W. Brennan
and Joseph S. Miller; for the Developers Alliance et al. by Ari Holtzblatt
and Hannah E. Gelbort; for Discord Inc. by Rebecca Tushnet; for Engine
Advocacy by Benjamin W. Berkowitz; for the Foundation for Individual
Rights and Expression by Robert Corn-Revere and Abigail E. Smith; for
the International Center for Law & Economics by Constance H. Pfeiffer
and Jason LaFond; for the Internet Society by Raechel Keay Kummer
and James D. Nelson; for the Liberty Justice Center by Jacob Huebert
and M. E. Buck Dougherty III; for the Media Law Resource Center, Inc.,
by George Freeman; for Professors of History by Theodore J. Boutrous,
Jr., and Lee R. Crain; for Protect the First Foundation by Gene C. Schaerr,
H. Christopher Bartolomucci, and Hannah C. Smith; for Public Knowl-
edge by John Bergmayer; for the Reason Foundation et al. by Erik S.
Jaffe; for Reddit, Inc., by Michael R. Huston; for the Reporters Commit-
tee for Freedom of the Press et al. by Bruce D. Brown and David D. Cole;
for TechFreedom by Corbin K. Barthold; for the Trust & Safety Founda-
tion by Ian C. Ballon, Lori Chang, and Bethany J. M. Pandher; for the
Washington Legal Foundation by John M. Masslon II and Cory L. An-
drews; for the Wikimedia Foundation by Kathleen R. Hartnett and Adam
Gershenson; for Yelp Inc. by Anna-Rose Mathieson and Jocelyn Sperling;
for Sen. Ben Ray Luján by J. Michael Showalter and Bradley S. Rochlen;
[Footnote ‡ is on page 716]
Page Proof Pending Publication

Page Proof Pending Publication
714 MOODY
v. NETCHOICE, LLC
Opinion of the Court
international network of interconnected computers.” Reno
v
. American Civil Liberties Union, 521 U. S. 844, 849 (1997).
Things have changed since then. At the time, only 40 mil-
lion people used the internet. See id., at 850. Today, Face-
for Christopher S. Yoo, pro se; and in No. 22–277 for the PEN American
Center et al. by Lynn B. Oberlander, Joseph Slaughter, and Maxwell S.
Mishkin. Jean-Paul Jassy and Michael A. Cheah fled a brief for In-
ternet Works et al. as amici curiae urging affrmance in No. 22–277 and
vacatur in No. 22–555.
Eric A. Hudson fled a brief for Keep the Republic as amicus curiae
urging vacatur in both cases.
Briefs of amici curiae were fled in both cases for the State of Missouri
et al. by Andrew Bailey, Attorney General of Missouri, Joshua M. Divine,
Solicitor General, Maria A. Lanahan, Deputy Solicitor General, and Caleb
Rutledge and Bryce Beal, Assistant Attorneys General, by Dave Yost, At-
torney General of Ohio, Michael Hendershot, Chief Deputy Solicitor Gen-
eral, Nicholas Cordova, Deputy Solicitor General, by Rusty D. Crandell and
Linley Wilson, and by the Attorneys General for their respective States as
follows: Steve Marshall of Alabama, Treg Taylor of Alaska, Tim Griffn
of Arkansas, Brenna Bird of Iowa, Russell Coleman of Kentucky, Liz
Murrill of Louisiana, Lynn Fitch of Mississippi, Austin Knudsen of Mon-
tana, Michael T. Hilgers of Nebraska, John M. Formella of New Hamp-
shire, Drew H. Wrigley of North Dakota, Gentner Drummond of Okla-
homa, Alan Wilson of South Carolina, Marty Jackley of South Dakota,
Jonathan Skrmetti of Tennessee, Sean D. Reyes of Utah, and Jason Miy-
ares of Virginia; for the State of New York et al. by Letitia James, Attor-
ney General of New York, Barbara D. Underwood, Solicitor General, Ester
Murdukhayeva, Deputy Solicitor General, and Sarah Coco, Assistant So-
licitor General, and by the Attorneys General for their respective jurisdic-
tions as follows: Kris Mayes of Arizona, Rob Bonta of California, Philip
J. Weiser of Colorado, William Tong of Connecticut, Kathleen Jennings of
Delaware, Brian L. Schwalb of the District of Columbia, Anne E. Lopez
of Hawaii, Kwame Raoul of Illinois, Aaron M. Frey of Maine, Anthony G.
Brown of Maryland, Andrea Joy Campbell of Massachusetts, Dana Nessel
of Michigan, Keith Ellison of Minnesota, Aaron D. Ford of Nevada, Mat-
thew J. Platkin of New Jersey, Joshua H. Stein of North Carolina, Ellen
F. Rosenblum of Oregon, Peter F. Neronha of Rhode Island, Charity R.
Clark of Vermont, Robert W. Ferguson of Washington, and Joshua L. Kaul
of Wisconsin; for the American Center for Law and Justice by Jay Alan
Sekulow, Stuart J. Roth, Jordan A. Sekulow, Colby M. May, Craig L.
Parshall, and Walter M. Weber; for the Anti-Defamation League by Steven

Page Proof Pending Publication
Cite
as: 603 U. S. 707 (2024)
715
Opinion of the Court
book and YouTube alone have over two billion users each.
See
App. in No. 22–555, p. 67a. And the public likely no
longer needs this Court to defne the internet.
M. Freeman; for the Becket Fund for Religious Liberty by Eric C. Rass-
bach and Mark L. Rienzi; for Bluesky et al. by Catherine R. Gellis; for
the Center for American Liberty by Randall W. Miller and Harmeet K.
Dhillon; for the Center for Business and Human Rights of the Leonard
N. Stern School of Business at New York University by Timothy K. Gil-
man; for the Center for Constitutional Jurisprudence by John C. Eastman
and Anthony T. Caso; for the Center for Social Media and Politics at New
York University et al. by Jacob M. Karr and Jason M. Schultz; for Chil-
dren's Health Defense by Mary Holland; for the Digital Progress Institute
by Joel Thayer; for Economists by Jennifer B. Tatel; for the Electronic
Frontier Foundation et al. by David Greene, Thomas S. Leatherbury, and
Christopher Hopkins; for the Electronic Privacy Information Center by
Alan Butler; for First Amendment and Internet Law Scholars by G. S.
Hans; for the Giffords Law Center to Prevent Gun Violence et al. by
Douglas N. Letter, Shira Lauren Feldman, and Kelly M. Percival; for the
Goldwater Institute by Timothy Sandefur; for the Knight First Amend-
ment Institute at Columbia University by Scott Wilkens, Ramya Krish-
nan, Alex Abdo, and Jameel Jaffer; for the Lawyers' Committee for Civil
Rights Under Law by Damon Hewitt, Jon Greenbaum, Dariely Rodri-
guez, David Brody, Marc Epstein, Christopher M. Mason, and Seth A.
Horvath; for the Marketplace Industry Association et al. by Eric B. Wol ff;
for the Moderators of r/ law and r/SCOTUS by Gabriel Latner; for Moms
for Liberty et al. by Alan Gura and Endel Kolde; for National Security
Experts by Mary B. McCord, pro se, Rupa Bhattacharyya, Kelsi Brown
Corkran, and Christopher J. Wright; for the National Taxpayers Union
Foundation by Tyler Martinez; for the Open Markets Institute by Jay L.
Himes; for Former Representative Christopher Cox et al. by David M.
Gossett, Adam S. Sieff, and Ambika Kumar; for Francis Fukuyama by
Seth D. Greenstein and Robert S. Schwartz; for Eric Goldman by Michael
S. Kwun; and for Richard L. Hasen et al. by Richard L. Hasen, pro se.
Richard Polk Lawson, Jessica Hart Steinmann, and John P. Coale fled
a brief for Donald J. Trump as amicus curiae in No. 22–277.
Lawrence J. Spiwak fled a brief for Phoenix Center for Advanced
Legal & Economic Public Policy Studies urging reversal in No. 22–555.
Briefs of amici curiae urging affrmance in No. 22–555 were fled for
Law and History Scholars by Glenn E. Chappell, Hassan A. Zavareei, and
Katherine Van Dyck; for the Life Legal Defense Foundation by Catherine
Short and Sheila A. Green; for Students at Columbia Against Censorship

716 MOODY
v. NETCHOICE, LLC
Opinion of the Court
These years have brought a dizzying transformation in
how
people communicate, and with it a raft of public policy
issues. Social-media platforms, as well as other websites,
have gone from unheard-of to inescapable. They structure
how we relate to family and friends, as well as to businesses,
civic organizations, and governments. The novel services
they offer make our lives better, and make them worse—
create unparalleled opportunities and unprecedented dan-
gers. The questions of whether, when, and how to regulate
online entities, and in particular the social-media giants, are
understandably on the front-burner of many legislatures and
agencies. And those government actors will generally be
better positioned than courts to respond to the emerging
challenges social-media entities pose.
But courts still have a necessary role in protecting those
entities' rights of speech, as courts have historically pro-
tected traditional media's rights. To the extent that social-
media platforms create expressive products, they receive the
First Amendment's protection. And although these cases
are here in a preliminary posture, the current record sug-
gests that some platforms, in at least some functions, are
indeed engaged in expressi on. In constructing cer tain
feeds, those platforms make choices about what third-party
speech to display and how to display it. They include and
exclude, organize and prioritize—and in making millions of
those decisions each day, produce their own distinctive com-
pilations of expression. And while much about social media
is new, the essence of that project is something this Court
by Marc A. Greendorfer; for Philip Hamburger by Jonathan F. Mitchell;
for Sen. Josh Hawley, p ro se; and for Dav id Mamet by Marc A.
Greendorfer.
Briefs of amici curiae urging affrmance in No. 22–555 were fled in
both cases for the Center for Renewing America by Richard A. Epstein;
for Donald W. Landry by Joel B. Ard; and for Christos A. Makridis by
Jonathan S. Goldstein and Shawn M. Rodgers.
‡Justice Jackson joins Parts I, II, and III–A of this opinion.
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 603 U. S. 707 (2024)
717
Opinion of the Court
has seen before. Traditional publishers and editors also se-
lec
t and shape other parties' expression into their own cu-
rated speech products. And we have repeatedly held that
laws curtailing their editorial choices must meet the First
Amendment's requirements. The principle does not change
because the curated compilation has gone from the physical
to the virtual world. In the latter, as in the former, govern-
ment efforts to alter an edited compilation of third-party ex-
pression are subject to judicial review for compliance with
the First Amendment.
Today, we consider whether two state laws regulating
social-media platforms and other websites facially violate the
First Amendment. The laws, from Florida and Texas, re-
strict the ability of social-media platforms to control whether
and how third-party posts are presented to other users. Or
otherwise put, the laws limit the platforms' capacity to en-
gage in content moderation—to flter, prioritize, and label
the varied messages, videos, and other content their users
wish to post. In addition, though far less addressed in this
Court, the laws require a platform to provide an individual-
ized explanation to a user if it removes or alters her posts.
NetChoice, an internet trade association, challenged both
laws on their face—as a whole, rather than as to particular
applications. The cases come to us at an early stage, on re-
view of preliminary injunctions. The Court of Appeals for
the Eleventh Circuit upheld such an injunction, fnding that
the Florida law was not likely to survive First Amendment
review. The Court of Appeals for the Fifth Circuit reversed
a similar injunction, primarily reasoning that the Texas law
does not regulate any speech and so does not implicate the
First Amendment.
Today, we vacate both decisions for reasons separate from
the First Amendment merits, because neither Court of Ap-
peals properly considered the facial nature of NetChoice's
challenge. The courts mainly addressed what the parties
had focused on. And the parties mainly argued these cases

718 MOODY
v. NETCHOICE, LLC
Opinion of the Court
as if the laws applied only to the curated feeds offered by
the
largest and most paradigmatic social-media platforms—
as if, say, each case presented an as-applied challenge
brought by Facebook protesting its loss of control over the
content of its News Feed. But argument in this Court re-
vealed that the laws might apply to, and differently affect,
other kinds of websites and apps. In a facial challenge, that
could well matter, even when the challenge is brought under
the First Amendment. As explained below, the question in
such a case is whether a law's unconstitutional applications
are substantial compared to its constitutional ones. To
make that judgment, a court must determine a law's full set
of applications, evaluate which are constitutional and which
are not, and compare the one to the other. Neither court
performed that necessary inquiry.
To do that right, of course, a court must understand what
kind of government actions the First Amendment prohibits.
We therefore set out the relevant constitutional principles,
and explain how one of the Courts of Appeals failed to follow
them. Contrary to what the Fifth Circuit thought, the cur-
rent record indicates that the Texas law does regulate speech
when applied in the way the parties focused on below—when
applied, that is, to prevent Facebook (or YouTube) from using
its content-moderation standards to remove, alter, organize,
prioritize, or disclaim posts in its News Feed (or homepage).
The law then prevents exactly the kind of editorial judg-
ments th is Cour t has prev i ously held to receive First
Amendment protection. It prevents a platform from com-
piling the third-party speech it wants in the way it wants,
and thus from offering the expressive product that most re-
fects its own views and priorities. Still more, the law—
again, in that specifc application—is unlikely to withstand
First Amendment scrutiny. Texas has thus far justifed the
law as necessary to balance the mix of speech on Facebook's
News Feed and similar platforms; and the record refects
that Texas offcials passed it because they thought those
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
719
Opinion of the Court
feeds skewed against politically conservative voices. But
th
is Court has many times held, in many contexts, that it is
no job for government to decide what counts as the right
balance of private expression—to “un-bias” what it thinks
biased, rather than to leave such judgments to speakers and
their audiences. That principle works for social-media plat-
forms as it does for others.
In sum, there is much work to do below on both these
cases, given the facial nature of NetChoice's challenges.
But that work must be done consistent with the First
Amendment, which does not go on leave when social media
are involved.
I
As commonly understood, the term “social media plat-
forms” typically refers to websites and mobile apps that
allow users to upload content—messages, pictures, videos,
and so on—to share with others. Those viewing the content
can then react to it, comment on it, or share it themselves.
The biggest social-media companies—entities like Facebook
and YouTube—host a staggering amount of content. Face-
book users, for example, share more than 100 billion mes-
sages every day. See App. in No. 22–555, at 67a. And You-
Tube sees more than 500 hours of video uploaded every
minute. See ibid.
In the face of that deluge, the major platforms cull and
organize uploaded posts in a variety of ways. A user does
not see everything—even everything from the people she
follows—in reverse-chronological order. The platforms will
have removed some content entirely; ranked or otherwise
prioritized what remains; and sometimes added warnings or
labels. Of particular relevance here, Facebook and YouTube
make some of those decisions in conformity with content-
moderation policies they call Community Standards and
Community Guidelines. Those rules list the subjects or
messages the platform prohibits or discourages—say, por-
nography, hate speech, or misinformation on select topics.
Page Proof Pending Publication

720 MOODY
v. NETCHOICE, LLC
Opinion of the Court
The rules thus lead Facebook and YouTube to remove, disfa-
vor
, or label various posts based on their content.
In 2021, Florida and Texas enacted statutes regulating
internet platforms, including the large social-media compa-
nies just mentioned. The States' laws differ in the entities
they cover and the activities they limit. But both contain
content-moderation provisions, restricting covered plat-
forms' choices about whether and how to display user-
generated content to the publ ic. And both i nclude
individualized-explanation provisions, requiring platforms to
give reasons for particular content-moderation choices.
Florida's law regulates “social media platforms,” as de-
fned expansively, that have annual gross revenue of over
$100 million or more than 100 million monthly active users.
Fla. Stat. § 501.2041(1)(g) (2023).
1
The statute restricts
var ied ways of “censor[i ng] ” or other w ise disfavor i ng
posts—including deleting, altering, labeling, or deprioritizing
them—based on their content or source. § 501.2041(1)(b).
For example, the law prohibits a platform from taking those
actions against “a journalistic enterprise based on the con-
tent of its publication or broadcast.” § 501.2041(2)( j). Sim-
ilarly, the law prevents deprioritizing posts by or about polit-
ical candidates. See § 501.2041(2)(h). And the law requires
platforms to apply their content-moderation practices to
users “in a consistent manner.” § 501.2041(2)(b).
In addition, the Florida law mandates that a platform pro-
vide an explanation to a user any time it removes or alters any
of her posts. See § 501.2041(2)(d)(1). The requisite notice
must be delivered within seven days, and contain both a “thor-
ough rationale” for the action and an account of how the plat-
form became aware of the targeted material. § 501.2041(3).
1
The defnition of “social-media platforms” covers “any information
service, system, Internet search engine, or access software provider” that
“[p]rovides or enables computer access by multiple users to a computer
server, including an Internet platform or a social media site.” Fla. Stat.
§ 501.2041(1)(g)(1).
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
721
Opinion of the Court
The Texas law regulates any social-media platform, having
over
50 million monthly active users, that allows its users
“to communicate with other users for the primary purpose
of posting information, comments, messages, or images.”
Tex. Bus. & Com. Code Ann. §§ 120.001(1), 120.002(b) (West
2023).
2
With severa l excepti ons, the statute prevents
platforms from “censor[ing]” a user or a user's expression
based on viewpoint. Tex. Civ. Prac. & Rem. Code Ann.
§§ 143A.002(a), 143A.006 (West Cum. Supp. 2023). That ban
on “censor[ing]” covers any action to “block, ban, remove,
deplatform, demonetize, de-boost, restrict, deny equal access
or visibility to, or otherwise discriminate against expres-
sion.” § 143A.001(1). The statute also requires that “con-
currently with the removal” of user content, the platform
shall “notify the user” and “explain the reason the content
was removed.” § 120.103(a)(1). The user gets a right of ap-
peal, and the platform must address an appeal within 14
days. See §§ 120.103(a)(2), 120.104.
Soon after Florida and Texas enacted those statutes, Net-
Choice LLC and the Computer & Communications Indus-
try Association (collectively, NetChoice)—trade associations
whose members include Facebook and YouTube—brought fa-
cial First Amendment challenges against the two laws. Dis-
trict courts in both States entered preliminary injunctions,
halting the laws' enforcement. See 546 F. Supp. 3d 1082,
1096 (ND Fla. 2021); 573 F. Supp. 3d 1092, 1117 (WD Tex.
2021). Each court held that the suit before it is likely to
succeed because the statute infringes on the constitutionally
protected “editorial judgment” of NetChoice's members
about what material they will display. See 546 F. Supp. 3d,
at 1090; 573 F. Supp. 3d, at 1107.
2
The statute further clarifes that it does not cover internet service
providers, email providers, and any online service, website, or app consist-
ing “primarily of news, sports, entertainment, or other information or con-
tent that is not user generated but is preselected by the provider.”
§ 120.001(1).
Page Proof Pending Publication

722 MOODY
v. NETCHOICE, LLC
Opinion of the Court
The Eleventh Circuit upheld the injunction of Florida's
law
, as to all provisions relevant here. The court held that
the State's restrictions on content moderation trigger First
Amendment scrutiny under this Court's cases protecting
“editorial discretion.” 34 F. 4th 1196, 1209, 1216 (2022).
When a social-media platform “removes or deprioritizes a
user or post,” the court explained, it makes a “judgment
rooted in the platform's own views about the sorts of con-
tent and viewpoints that are valuable and appropriate for
dissemination. ” Id., at 1210. The court concluded that
the content-moderation provisions are unlikely to survive
“intermediate—let alone strict—scrutiny,” because a State
has no legitimate interest in counteracting “private `censor-
ship' ” by “tilt[ing] public debate in a preferred direction.”
Id., at 1227–1228. Similarly, the Eleventh Circuit thought
the statute's individualized-explanation requirements likely
to fall. Applying the standard from Zauderer v. Offce of
Disciplinary Counsel of Supreme Court of Ohio, 471 U. S.
626 (1985), the court held that the obligation to explain “mil-
lions of [decisions] per day” is “unduly burdensome and likely
to chill platforms' protected speech.” 34 F. 4th, at 1230.
The Fifth Circuit disagreed across the board, and so re-
versed the preliminary injunction before it. In that court's
view, the platforms' content-moderation activities are “not
speech” at all, and so do not implicate the First Amendment.
49 F. 4th 439, 466, 494 (2022). But even if those activities
were expressive, the court continued, the State could regu-
late them to advance its interest in “protecting a diversity
of ideas.” Id., at 482 (emphasis deleted). The court further
held that the statute's individualized-explanation provisions
would likely survive, again even assuming that the platforms
were engaged in speech. Those requirements, the court
maintained, are not unduly burdensome under Zauderer be-
cause the platforms needed only to “scale up” a “complaint-
and-appeal process” they already used. 49 F. 4th, at 487.
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
723
Opinion of the Court
We granted certiorari to resolve the split between the
Fi
fth and Eleventh Circuits. 600 U. S. ––– (2023).
II
NetChoice chose to litigate these cases as facial challenges,
and that decision comes at a cost. For a host of good rea-
sons, courts usually handle constitutional claims case by case,
not en masse. See Washington State Grange v. Washing-
ton State Republican Party, 552 U. S. 442, 450–451 (2008).
“Claims of facial invalidity often rest on speculation” about
the law's coverage and its future enforcement. Id., at 450.
And “facial challenges threaten to short circuit the demo-
cratic process” by preventing duly enacted laws from being
implemented in constitutiona l ways. Id., at 451. Th is
Court has therefore made facial challenges hard to win.
That is true even when a facial suit is based on the First
Amendment, although then a different standard applies. In
other cases, a plaintiff cannot succeed on a facial challenge
unless he “establish[es] that no set of circumstances exists
under which the [law] would be valid,” or he shows that the
law lacks a “plainly legitimate sweep.” United States v. Sa-
lerno, 481 U. S. 739, 745 (1987); Washington State Grange,
552 U. S., at 449. In First Amendment cases, however, this
Court has lowered that very high bar. To “provide[ ]
breathing room for free expression,” we have substituted a
less demanding though still rigorous standard. United
States v. Hansen, 599 U. S. 762, 769 (2023). The question is
whether “a substantial number of [the law's] applications are
unconstitutional, judged in relation to the statute's plainly
legitimate sweep.” Americans for Prosperity Foundation
v. Bonta, 594 U. S. 595, 615 (2021); see Hansen, 599 U. S., at
770 (likewise asking whether the law “prohibits a substantial
amount of protected speech relative to its plainly legitimate
sweep”). So in this singular context, even a law with “a
plainly legitimate sweep” may be struck down in its entirety.
Page Proof Pending Publication

Page Proof Pending Publication
724 MOODY
v. NETCHOICE, LLC
Opinion of the Court
But that is so only if the law's unconstitutional applications
subst
antially outweigh its constitutional ones.
So far in these cases, no one has paid much attention to
that issue. In the lower courts, NetChoice and the States
alike treated the laws as having certain heartland applica-
tions, and mostly confned their battle to that terrain. More
specifcally, the focus was on how the laws applied to the
content-moderation practices that giant social-media plat-
forms use on their best-known services to flter, alter, or
label their users' posts. Or more specifcally still, the focus
was on how the laws applied to Facebook's News Feed and
YouTube's homepage. Refecting the parties' arguments,
the Eleventh and Fifth Circuits also mostly confned their
analysis in that way. See 34 F. 4th, at 1210, 1213 (consider-
ing “platforms like Facebook, Twitter, YouTube, and TikTok”
and content moderation in “viewers' feeds”); 49 F. 4th, at
445, 460, 478, 492 (considering platforms “such as Facebook,
Twitter, and YouTube” and referencing users' feeds); see also
id., at 501 (Southwick, J., concurring in part and dissenting in
part) (analyzing a curated feed). On their way to opposing
conclusions, they concentrated on the same issue: whether a
state law can regulate the content-moderation practices used
in Facebook's News Feed (or near equivalents). They did
not address the full range of activities the laws cover, and
measure the constitutional against the unconstitutional ap-
plications. In short, they treated these cases more like as-
applied claims than like facial ones.
The frst step in the proper facial analysis is to assess the
state laws' scope. What activities, by what actors, do the
laws prohibit or otherwise regulate? The laws of course dif-
fer one from the other. But both, at least on their face, ap-
pear to apply beyond Facebook's News Feed and its ilk.
Members of this Court asked some of the relevant questions
at oral argument. Starting with Facebook and the other
giants: To what extent, if at all, do the laws affect their other
services, like direct messaging or events management? See

Cite
as: 603 U. S. 707 (2024)
725
Opinion of the Court
Tr. of Oral Arg. in No. 22–555, pp. 62–63; Tr. of Oral Arg. in
N
o. 22–277, pp. 24–25; App. in No. 22–277, pp. 129, 159. And
beyond those social-media entities, what do the laws have to
say, if anything, about how an email provider like Gmail fl-
ters incoming messages, how an online marketplace like Etsy
displays customer reviews, how a payment service like
Venmo manages friends' fnancial exchanges, or how a ride-
sharing service like Uber runs? See Tr. of Oral Arg. in No.
22–277, at 74–79, 95–98; see also id., at 153 (Solicitor General)
(“I have some sympathy [for the Court] here. In prepara-
tion for this argument, I've been working with my team
to say, does this even cover direct messaging? Does this
even cover Gmail?”). Those are examples only. The on-
line world is variegated and complex, encompassing an ever-
growing number of apps, services, functionalities, and meth-
ods for communication and connection. Each might (or
might not) have to change because of the provisions, as to
either content moderation or individualized explanation, in
Florida's or Texas's law. Before a court can do anything else
with these facial challenges, it must address that set of
issues—in short, must “determine what [the law] covers.”
Hansen, 599 U. S., at 770.
The next order of business is to decide which of the laws'
applications violate the First Amendment, and to measure
them against the rest. For the content-moderation provi-
sions, that means asking, as to every covered platform
or function, whether there is an intrusion on protected edi-
tor ia l discreti on. See in f ra, at 727–733. And for the
individualized-explanation provisions, it means asking, again
as to each thing covered, whether the required disclosures
unduly burden expression. See Zauderer, 471 U. S., at 651.
Even on a preliminary record, it is not hard to see how the
answers might differ as between regulation of Facebook's
News Feed (considered in the courts below) and, say, its di-
rect messaging service (not so considered). Curating a feed
and transmitting direct messages, one might think, involve
Page Proof Pending Publication

726 MOODY
v. NETCHOICE, LLC
Opinion of the Court
different levels of editorial choice, so that the one creates an
expressive
product and the other does not. If so, regulation
of those diverse activities could well fall on different sides
of the constitutional line. To decide the facial challenges
here, the courts below must explore the laws' full range of
applications—the constitutionally impermissible and permis-
sible both—and compare the two sets. Maybe the parties
treated the content-moderation choices refected in Face-
book's News Feed and YouTube's homepage as the laws'
heartland applications because they are the principal things
regulated, and should have just that weight in the facial
analysis. Or maybe not: Maybe the parties' focus had all to
do with litigation strategy, and there is a sphere of other
applications—and constitutional ones—that would prevent
the laws' facial invalidation.
The problem for this Court is that it cannot undertake the
needed inquiries. “[W]e are a court of review, not of frst
view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005).
Neither the Eleventh Circuit nor the Fifth Circuit performed
the facial analysis in the way just described. And even
were we to ignore the value of other courts going frst, we
could not proceed very far. The parties have not briefed
the critical issues here, and the record is underdeveloped.
So we vacate the decisions below and remand these cases.
That will enable the lower courts to consider the scope of
the laws' applications, and weigh the unconstitutional as
against the constitutional ones.
III
But it is necessary to say more about how the First
Amendment relates to the laws' content-moderation provi-
sions, to ensure that the facial analysis proceeds on the right
path in the courts below. That need is especially stark for
the Fifth Circuit. Recall that it held that the content
choices the major platforms make for their main feeds are
“not speech” at all, so States may regulate them free of the
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 603 U. S. 707 (2024)
727
Opinion of the Court
First Amendment's restraints. 49 F. 4th, at 494; see supra,
at
722. And even if those activities were expressive, the
court held, Texas's interest in better balancing the market-
place of ideas would satisfy First Amendment scrutiny. See
49 F. 4th, at 482. If we said nothing about those views, the
court presumably would repeat them when it next considers
NetChoice's challenge. It would thus fnd that signifcant
applications of the Texas law—and so signifcant inputs into
the appropriate facial analysis—raise no First Amendment
diffculties. But that conclusion would rest on a serious mis-
understanding of First Amendment precedent and principle.
The Fifth Circuit was wrong in concluding that Texas's re-
strictions on the platforms' selection, ordering, and labeling
of third-party posts do not interfere with expression. And
the court was wrong to treat as valid Texas's interest in
changing the content of the platforms' feeds. Explaining
why that is so will prevent the Fifth Circuit from repeating
its errors as to Facebook's and YouTube's main feeds. (And
our analysis of Texas's law may also aid the Eleventh Circuit,
which saw the First Amendment issues much as we do, when
next considering NetChoice's facial challenge.) But a ca-
veat: Nothing said here addresses any of the laws' other ap-
plications, which may or may not share the First Amend-
ment problems described below.
3
A
Despite the relative novelty of the technology before us,
the main problem in this case—and the inquiry it calls for—
3
Although the discussion below focuses on Texas's content-moderation
provisions, it also bears on how the lower courts should address the
individualized-explanation provisions in the upcoming facial inquiry. As
noted, requirements of that kind violate the First Amendment if they un-
duly burden expressive activity. See Zauderer v. Offce of Disciplinary
Counsel of Supreme Court of Ohio, 471 U. S. 626, 651 (1985); supra, at
725. So our explanation of why Facebook and YouTube are engaged in
expression when they make content-moderation choices in their main feeds
should inform the courts' further consideration of that issue.

728 MOODY
v. NETCHOICE, LLC
Opinion of the Court
is not new. At bottom, Texas's law requires the platforms
to
carry and promote user speech that they would rather
discard or downplay. The platforms object that the law thus
forces them to alter the content of their expression—a par-
ticular edited compilation of third-party speech. See Brief
for NetChoice in No. 22–555, pp. 18–34. That controversy
sounds a familiar note. We have repeatedly faced the ques-
tion whether ordering a party to provide a forum for some-
one else's views implicates the First Amendment. And we
have repeatedly held that it does so if, though only if, the
regulated party is engaged in its own expressive activity,
which the mandated access would alter or disrupt. So too
we have held, when applying that principle, that expressive
activity includes presenting a curated compilation of speech
originally created by others. A review of the relevant prec-
edents will help resolve the question here.
The seminal case is Miami Herald Publishing Co. v. Tor-
nillo, 418 U. S. 241 (1974). There, a Florida law required a
newspaper to give a political candidate a right to reply when
it published “criticism and attacks on his record.” Id., at
243. The Court held the law to violate the First Amend-
ment because it interfered with the newspaper's “exercise of
editorial control and judgment.” Id., at 258. Forcing the
paper to print what “it would not otherwise print,” the
Court explained, “intru[ded] into the function of editors.”
Id., at 256, 258. For that function was, frst and foremost,
to make decisions about the “content of the paper” and “[t]he
choice of material to go into” it. Id., at 258. In protecting
that right of editorial control, the Court recognized a possi-
ble downside. It noted the access advocates' view (similar
to the States' view here) that “modern media empires” had
gained ever greater capacity to “shape” and even “manipu-
late popular opinion.” Id., at 249–250. And the Court ex-
pressed some sympathy with that diagnosis. See id., at 254.
But the cure proposed, it concluded, collided with the First
Amendment's antipathy to state manipulation of the speech
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
729
Opinion of the Court
market. Florida, the Court explained, could not substitute
“gover
nmental regulation” for the “crucial process” of edito-
rial choice. Id., at 258.
Next up was Pacifc Gas & Elec. Co. v. Public Util.
Comm'n of Cal., 475 U. S. 1 (1986) (PG&E), which the Court
thought to follow naturally from Tornillo. See 475 U. S., at
9–12 (plurality opinion); id., at 21 (Burger, C. J., concurring).
A private utility in California regularly put a newsletter in
its billing envelopes expressing its views of energy policy.
The State directed it to include as well material from a
consumer-advocacy group giving a different perspective.
The utility objected, and the Court held again that the inter-
est in “offer[ing] the public a greater variety of views” could
not justify the regulation. Id., at 12. California was com-
pelling the utility (as Florida had compelled a newspaper)
“to carry speech with which it disagreed” and thus to “alter
its own message.” Id., at 11, n. 7, 16.
In Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622
(1994) (Turner I), the Court further underscored the consti-
tutional protection given to editorial choice. At issue were
federal “must-carry” rules, requiring cable operators to allo-
cate some of their channels to local broadcast stations. The
Court had no doubt that the First Amendment was impli-
cated, because the operators were engaging in expressive
activity. They were, the Court explained, “exercising edito-
rial discretion over which stations or programs to include
in [their] repertoire.” Id., at 636. And the rules “inter-
fere[d]” with that discretion by forcing the operators to carry
stations they would not otherwise have chosen. Id., at 643–
644. In a later decision, the Court ruled that the regulation
survived First Amendment review because it was necessary
to prevent the demise of local broadcasting. See Turner
Broadcasting System, Inc. v. FCC, 520 U. S. 180, 185, 189–
190 (1997) (Turner II); see infra, at 742, n. 10. But for pur-
poses of today's cases, the takeaway of Turner is this hold-
ing: A private party's collection of third-party content into a
Page Proof Pending Publication

Page Proof Pending Publication
730 MOODY
v. NETCHOICE, LLC
Opinion of the Court
single speech product (the operators' “repertoire” of pro-
grammi
ng) is itself expressive, and intrusion into that activ-
ity must be specially justifed under the First Amendment.
The capstone of those precedents came in Hurley v. Irish-
American Gay, Lesbian and Bisexual Group of Boston, Inc.,
515 U. S. 557 (1995), when the Court considered (of all things)
a parade. The question was whether Massachusetts could
require the organizers of a St. Patrick's Day parade to admit
as a participant a gay and lesbian group seeking to convey
a message of “pride.” Id., at 561. The Court held unani-
mously that the First Amendment precluded that compul-
sion. The “selection of contingents to make a parade,” it
explained, is entitled to First Amendment protection, no less
than a newspaper's “presentation of an edited compilation of
[other persons'] speech.” Id., at 570 (citing Tornillo, 418
U. S., at 258). And that meant the State could not tell the
parade organizers whom to include. Because “every partici-
pating unit affects the message,” said the Court, ordering
the group's admittance would “alter the expressive content
of the[ ] parade.” Hurley, 515 U. S., at 572–573. The pa-
rade's organizers had “decided to exclude a message [they]
did not like from the communication [they] chose to make,”
and that was their decision alone. Id., at 574.
On two other occasions, the Court distinguished Tornillo
and its progeny for the fip-side reason—because in those
cases the compelled access did not affect the complaining
party's own expression. First, in PruneYard Shopping
Center v. Robins, 447 U. S. 74 (1980), the Court rejected a
shopping mall's First Amendment challenge to a California
law requiring it to allow members of the public to distribute
handbills on its property. The mall owner did not claim that
he (or the mall) was engaged in any expressive activity. In-
deed, as the PG&E Court later noted, he “did not even allege
that he objected to the content of the pamphlets” passed out
at the mall. 475 U. S., at 12. Similarly, in Rumsfeld v.
Forum for Academic and Institutional Rights, Inc., 547

Cite
as: 603 U. S. 707 (2024)
731
Opinion of the Court
U. S. 47 (2006) (FAIR), the Court reiterated that a First
Amendment
claim will not succeed when the entity objecting
to hosting third-party speech is not itself engaged in expres-
sion. The statute at issue required law schools to allow the
military to participate in on-campus recruiting. The Court
held that the schools had no First Amendment right to ex-
clude the military based on its hiring policies, because the
schools “are not speaking when they host interviews.” Id.,
at 64. Or stated again, with reference to the just-described
precedents: Because a “law school's recruiting services lack
the expressive quality of a parade, a newsletter, or the edito-
rial page of a newspaper,” the required “accommodation of a
military recruiter[ ]” did not “interfere with any message of
the school.” Ibid.
That is a slew of individual cases, so consider three general
points to wrap up. Not coincidentally, they will fgure in
the upcoming discussion of the First Amendment problems
the statutes at issue here likely present as to Facebook's
News Feed and similar products.
First, the First Amendment offers protection when an
entity engaging in expressive activity, including compiling
and curating others' speech, is directed to accommodate mes-
sages it would prefer to exclude. “[T]he editorial function
itself is an aspect of speech.” Denver Area Ed. Telecommu-
nications Consortium, Inc. v. FCC, 518 U. S. 727, 737 (1996)
(plurality opinion). Or said just a bit differently: An entity
“exercis[ing] editorial discretion in the selection and presen-
tation” of content is “engage[d] in speech activity.” Arkan-
sas Ed. Television Comm'n v. Forbes, 523 U. S. 666, 674
(1998). And that is as true when the content comes from
third parties as when it does not. (Again, think of a news-
paper opinion page or, if you prefer, a parade.) Deciding on
the third-party speech that will be included in or excluded
from a compilation—and then organizing and presenting the
included items—is expressive activity of its own. And that
activity results in a distinctive expressive product. When
Page Proof Pending Publication

732 MOODY
v. NETCHOICE, LLC
Opinion of the Court
the government interferes with such editorial choices—say,
by
ordering the excluded to be included—it alters the con-
tent of the compilation. (It creates a different opinion page
or parade, bearing a different message.) And in so doing—
in overriding a private party's expressive choices—the gov-
ernment confronts the First Amendment.
4
Second, none of that changes just because a compiler in-
cludes most items and excludes just a few. That was the
situation in Hurley. The St. Patrick's Day parade at issue
there was “eclectic”: It included a “wide variety of patriotic,
commercial, political, moral, artistic, religious, athletic, pub-
lic service, trade union, and eleemosynary themes, as well
as conficting messages.” 515 U. S., at 562. Or otherwise
said, the organizers were “rather lenient in admitting partici-
pants.” Id., at 569. No matter. A “narrow, succinctly ar-
ticulable message is not a condition of constitutional protec-
tion.” Ibid. It “is enough” for a compiler to exclude the
handful of messages it most “disfavor[s].” Id., at 574. Sup-
pose, for example, that the newspaper in Tornillo had
granted a right of reply to all but one candidate. It would
have made no difference; the Florida statute still could not
have altered the paper's policy. Indeed, that kind of focused
editorial choice packs a peculiarly powerful expressive
punch.
Third, the government cannot get its way just by asserting
an interest in improving, or better balancing, the market-
place of ideas. Of course, it is critically important to have a
well-functioning sphere of expression, in which citizens have
access to information from many sources. That is the whole
project of the First Amendment. And the government can
4
Of course, an entity engaged in expressive activity when performing
one function may not be when carrying out another. That is one lesson
of FAIR. The Court ruled as it did because the law schools' recruiting
services were not engaged in expression. See 547 U. S. 47, 64 (2006).
The case could not have been resolved on that ground if the regulation
had affected what happened in law school classes instead.
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
733
Opinion of the Court
take varied measures, like enforcing competition laws, to
protec
t that access. Cf., e. g., Turner I, 512 U. S., at 647
(protecting local broadcasting); Hurley, 515 U. S., at 577 (dis-
cussing Turner I). But in case after case, the Court has
barred the government from forcing a private speaker to
present views it wished to spurn in order to rejigger the
expressive realm. The regulations in Tornillo, PG&E, and
Hurley all were thought to promote greater diversity of ex-
pression. See supra, at 728–730. They also were thought
to counteract advantages some private parties possessed in
controlling “enviable vehicle[s]” for speech. Hurley, 515
U. S., at 577. Indeed, the Tornillo Court devoted six pages
of its opinion to recounting a critique of the then-current
media environment—in particular, the disproportionate “in-
fuen[ce]” of a few speakers—similar to one heard today (ex-
cept about different entities). 418 U. S., at 249; see id., at
248–254; supra, at 728–729. It made no difference. How-
ever imperfect the private marketplace of ideas, here was a
worse proposal—the government itself deciding when speech
was imbalanced, and then coercing speakers to provide more
of some views or less of others.
B
“[W]hatever the challenges of applying the Constitution to
ever-advancing technology, the basic principles” of the First
Amendment “do not vary.” Brown v. Entertainment Mer-
chants Assn., 564 U. S. 786, 790 (2011). New communica-
tions media differ from old ones in a host of ways: No one
thinks Facebook's News Feed much resembles an insert put
in a billing envelope. And similarly, today's social media
pose dangers not seen earlier: No one ever feared the effects
of newspaper opinion pages on adolescents' mental health.
But analogies to old media, even if imperfect, can be useful.
And better still as guides to decision are settled principles
about freedom of expression, including the ones just de-
scribed. Those principles have served the Nation well over
Page Proof Pending Publication

Page Proof Pending Publication
734 MOODY
v. NETCHOICE, LLC
Opinion of the Court
many years, even as one communications method has given
way
to another. And they have much to say about the laws
at issue here. These cases, to be sure, are at an early stage;
the record is incomplete even as to the major social-media
platforms' main feeds, much less the other applications that
must now be considered. See supra, at 726. But in review-
ing the District Court's preliminary injunction, the Fifth
Circuit got its likelihood-of-success fnding wrong. Texas is
not likely to succeed in enforcing its law against the plat-
forms' application of their content-moderation policies to the
feeds that were the focus of the proceedings below. And
that is because of the core teaching elaborated in the above-
summarized decisions: The government may not, in supposed
pursuit of better expressive balance, alter a private speak-
er's own editorial choices about the mix of speech it wants
to convey.
Most readers are likely familiar with Facebook's News
Feed or YouTube's homepage; assuming so, feel free to skip
this paragraph (and maybe a couple more). For the uniniti-
ated, though, each of those feeds presents a user with a con-
tinually updating stream of other users' posts. For Face-
book's News Feed, any user may upload a message, whether
verbal or visual, with content running the gamut from “vaca-
tion pictures from friends” to “articles from local or national
news outlets.” App. in No. 22–555, at 139a. And whenever
a user signs on, Facebook delivers a personalized collection
of those stories. Similarly for YouTube. Its users upload
all manner of videos. And any person opening the website
or mobi le app receives an i ndiv idua l i zed l ist of v ideo
recommendations.
The key to the scheme is prioritization of content, achieved
through the use of algorithms. Of the billions of posts or
videos (plus advertisements) that could wind up on a user's
customized feed or recommendations list, only the tiniest
fraction do. The selection and ranking is most often based

Cite
as: 603 U. S. 707 (2024)
735
Opinion of the Court
on a user's expressed interests and past activities. But it
may
also be based on more general features of the communi-
cation or its creator. Facebook's Community Standards and
YouTube's Community Guidelines detail the messages and
videos that the platforms disfavor. The platforms write al-
gorithms to implement those standards—for example, to pre-
fer content deemed particularly trustworthy or to suppress
content viewed as deceptive (like videos promoting “conspir-
acy theor[ies]”). Id., at 113a.
Beyond rankings lie labels. The platforms may attach
“warning[s], disclaimers, or general commentary”—for exam-
ple, informing users that certain content has “not been veri-
fed by offcial sources.” Id., at 75a. Likewise, they may
use “information panels” to give users “context on content
relating to topics and news prone to misinformation, as well
as context about who submitted the content.” Id., at 114a.
So, for example, YouTube identifes content submitted by
state-supported media channels, including those funded by
the Russian Government. See id., at 76a.
But sometimes, the platforms decide, providing more in-
formation is not enough; instead, removing a post is the right
course. The platforms' content-moderation policies also say
when that is so. Facebook's Standards, for example, pro-
scribe posts—with exceptions for “newsworth[iness]” and
other “public interest value”—in categories and subcategor-
ies including: Violence and Criminal Behavior (e. g., violence
and incitement, coordinating harm and publicizing crime,
fraud and deception); Safety (e. g., suicide and self-injury,
sexual exploitation, bullying and harassment); Objectionable
Content (e. g., hate speech, violent and graphic content);
Integrity and Authenticity (e. g., false news, manipulated
media). Id., at 412a–415a, 441a–442a. YouTube's Guide-
lines similarly target videos falling within categories like:
hate speech, violent or graphic content, child safety, and mis-
information (including about elections and vaccines). See
Page Proof Pending Publication

736 MOODY
v. NETCHOICE, LLC
Opinion of the Court
id., at 430a–432a. The platforms thus unabashedly control
the
content that will appear to users, exercising authority to
remove, label or demote messages they disfavor.
5
Except that Texas's law limits their power to do so. As
noted earlier, the law's central provision prohibits the large
social-media platforms (and maybe other entities
6
) from “cen-
sor[ing]” a “user's expression” based on its “viewpoint.”
§ 143A.002(a)(2); see supra, at 721. The law defnes “expres-
sion” broadly, thus including pretty much anything that
might be posted. See § 143A.001(2). And it defnes “cen-
sor” to mean “block, ban, remove, deplatform, demonetize,
de-boost, restrict, deny equal access or visibility to, or other-
w ise discr iminate against expressi on. ” § 143A.001(1).
7
That is a long list of verbs, but it comes down to this: The
platforms cannot do any of the things they typically do (on
their main feeds) to posts they disapprove—cannot demote,
label, or remove them—whenever the action is based on the
5
We therefore do not deal here with feeds whose algorithms respond
solely to how users act online—giving them the content they appear to
want, without any regard to independent content standards. See post, at
746 (Barrett, J., concurring). Like them or loathe them, the Community
Standards and Community Guidelines make a wealth of user-agnostic
judgments about what kinds of speech, including what viewpoints, are not
worthy of promotion. And those judgments show up in Facebook's and
YouTube's main feeds.
6
The scope of the Texas law, a matter crucial to the facial inquiry, is
unsettled, as previously discussed. See supra, at 724–725. The Texas
solicitor general at oral argument stated that he understood the law to
cover Facebook and YouTube, but “d[id]n't know” whether it also covered
other platforms and applications. Tr. of Oral Arg. in No. 22–555, pp. 61–62.
7
In addition to barring “censor[ship]” of “expression,” the law bars “cen-
sor[ship]” of people. More specifcally, it prohibits taking the designated
“censor[ial]” actions against any “user” based on his “viewpoint,” regard-
less of whether that “viewpoint is expressed on a social media platform.”
§§ 143A.002(a)(1), (b); see supra, at 721. Because the Fifth Circuit did not
focus on that provision, instead confning its analysis to the law's ban on
“censor[ing]” a “user's expression” on the platform, we do the same.
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 603 U. S. 707 (2024)
737
Opinion of the Court
post's viewpoint.
8
And
what does that “based on viewpoint”
requirement entail? Doubtless some of the platforms'
content-moderation practices are based on characteristics of
speech other than viewpoint (e. g., on subject matter). But
if Texas's law is enforced, the platforms could not—as they
in fact do now—disfavor posts because they:
•
support Nazi ideology;
•
advocate for terrorism;
•
espouse racism, Islamophobia, or anti-Semitism;
•
glorify rape or other gender-based violence;
•
encourage teenage suicide and self-injury;
•
discourage the use of vaccines;
•
advise phony treatments for diseases;
•
advance false claims of election fraud.
The list could continue for a while.
9
The point of it is not
that the speech environment created by Texas's law is worse
than the ones to which the major platforms aspire on their
main feeds. The point is just that Texas's law profoundly
alters the platforms' choices about the views they will, and
will not, convey.
8
The Texas solicitor general explained at oral argument that the Texas
law allows the platforms to remove “categories” of speech, so long as they
are not based on viewpoint. See Tr. of Oral Arg. in No. 22–555, at 69–70;
§ 120.052 (Acceptable Use Policy). The example he gave was speech
about Al-Qaeda. Under the law, a platform could remove all posts about
Al-Qaeda, regardless of viewpoint. But it could not stop the “pro-Al-
Qaeda” speech alone; it would have to stop the “anti-Al-Qaeda” speech too.
Tr. of Oral Arg. in No. 22–555, at 70. So again, the law, as described by
the solicitor general, prevents the platforms from disfavoring posts be-
cause they express one view of a subject.
9
Details on both the enumerated examples and similar ones are found in
Facebook's Community Standards and YouTube's Community Guidelines.
See https://transparency.meta.com/policies/community-standards; https://
support.google.com/youtube/answer/9288567.

738 MOODY
v. NETCHOICE, LLC
Opinion of the Court
And we have time and again held that type of regulation
to
interfere with protected speech. Like the editors, cable
operators, and parade organizers this Court has previously
considered, the major social-media platforms are in the busi-
ness, when curating their feeds, of combining “multifarious
voices” to create a distinctive expressive offering. Hurley,
515 U. S., at 569. The individual messages may originate
with third parties, but the larger offering is the platform's.
It is the product of a wealth of choices about whether—and,
if so, how—to convey posts having a certain content or view-
point. Those choices rest on a set of beliefs about which
messages are appropriate and which are not (or which are
more appropriate and which less so). And in the aggregate
they give the feed a particular expressive quality. Consider
again an opinion page editor, as in Tornillo, who wants to
publish a variety of views, but thinks some things off-limits
(or, to change the facts, worth only a couple of column
inches). “The choice of material,” the “decisions made [as
to] content,” the “treatment of public issues”—“whether fair
or unfair”—all these “constitute the exercise of editorial con-
trol and judgment.” Tornillo, 418 U. S., at 258. For a
paper, and for a platform too. And the Texas law (like Flor-
ida's earlier right-of-reply statute) targets those expressive
choices—in particular, by forcing the major platforms to
present and promote content on their feeds that they regard
as objectionable.
That those platforms happily convey the lion's share of
posts submitted to them makes no signifcant First Amend-
ment difference. Contra, 49 F. 4th, at 459–461 (arguing oth-
erwise). To begin with, Facebook and YouTube exclude (not
to mention, label or demote) lots of content from their News
Feed and homepage. The Community Standards and Com-
munity Guidelines set out in copious detail the varied kinds
of speech the platforms want no truck with. And both plat-
forms appear to put those manuals to work. In a single
quarter of 2021, Facebook removed from its News Feed more
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
739
Opinion of the Court
than 25 million pieces of “hate speech content” and almost 9
mi
llion pieces of “bullying and harassment content.” App.
in No. 22–555, at 80a. Similarly, YouTube deleted in one
quarter more than 6 million videos violating its Guidelines.
See id., at 116a. And among those are the removals the
Texas law targets. What is more, this Court has already
rightly declined to focus on the ratio of rejected to accepted
content. Recall that in Hurley, the parade organizers wel-
comed pretty much everyone, excluding only those who ex-
pressed a message of gay pride. See supra, at 732. The
Court held that the organizers' “lenient” admissions policy—
and their resulting failure to express a “particularized mes-
sage”—did “not forfeit” their right to reject the few mes-
sages they found harmful or offensive. 515 U. S., at 569, 574.
So too here, though the excluded viewpoints differ. That
Facebook and YouTube convey a mass of messages does not
license Texas to prohibit them from deleting posts with, say,
“hate speech” based on “sexual orientation.” App. in No.
22–555, at 126a, 155a; see id., at 431a. It is as much an edi-
torial choice to convey all speech except in select categories
as to convey only speech within them.
Similarly, the major social-media platforms do not lose
their First Amendment protection just because no one will
wrongly attribute to them the views in an individual post.
Contra, 49 F. 4th, at 462 (arguing otherwise). For starters,
users may well attribute to the platforms the messages that
the posts convey in toto. Those messages—communicated
by the feeds as a whole—derive largely from the platforms'
editorial decisions about which posts to remove, label, or de-
mote. And because that is so, the platforms may indeed
“own” the overall speech environment. In any event, this
Court has never hinged a compiler's First Amendment pro-
tection on the risk of misattribution. The Court did not
think in Turner—and could not have thought in Tornillo or
PG&E—that anyone would view the entity conveying the
third-party speech at issue as endorsing its content. See
Page Proof Pending Publication

740 MOODY
v. NETCHOICE, LLC
Opinion of the Court
Turner I, 512 U. S., at 655 (“[T]here appears little risk” of
such
misattribution). Yet all those entities, the Court held,
were entitled to First Amendment protection for refusing to
carry the speech. See supra, at 728–730. To be sure, the
Court noted in PruneYard and FAIR, when denying such
protection, that there was little prospect of misattribution.
See 447 U. S., at 87; 547 U. S., at 65. But the key fact in
those cases, as noted above, was that the host of the third-
party speech was not itself engaged in expression. See
supra, at 730–731. The current record suggests the oppo-
site as to Facebook's News Feed and YouTube's homepage.
When the platforms use their Standards and Guidelines to
decide which third-party content those feeds will display, or
how the display will be ordered and organized, they are mak-
ing expressive choices. And because that is true, they re-
ceive First Amendment protection.
C
And once that much is decided, the interest Texas relies
on cannot sustain its law. In the usual First Amendment
case, we must decide whether to apply strict or intermediate
scrutiny. But here we need not. Even assuming that the
less stringent form of First Amendment review applies, Tex-
as's law does not pass. Under that standard, a law must
further a “substantial governmental interest” that is “unre-
lated to the suppression of free expression.” United States
v. O'Brien, 391 U. S. 367, 377 (1968). Many possible inter-
ests relating to social media can meet that test; nothing said
here puts regulation of NetChoice's members off-limits as to
a whole array of subjects. But the interest Texas has as-
serted cannot carry the day: It is very much related to the
suppression of free expression, and it is not valid, let alone
substantial.
Texas has never been shy, and always been consistent,
about its interest: The objective is to correct the mix of
speech that the major social-media platforms present. In
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
741
Opinion of the Court
this Court, Texas described its law as “respond[ing]” to the
platfor
ms' practice of “favoring certain viewpoints.” Brief
for Texas 7; see id., at 27 (explaining that the platforms' “dis-
crimination” among messages “led to [the law's] enactment”).
The large social-media platforms throw out (or encumber)
certain messages; Texas wants them kept in (and free from
encumbrances), because it thinks that would create a better
speech balance. The current amalgam, the State explained
in earlier briefng, was “skewed” to one side. 573 F. Supp.
3d, at 1116. And that assessment mirrored the stated views
of those who enacted the law, save that the latter had a bit
more color. The law's main sponsor explained that the
“West Coast oligarchs” who ran social-media companies were
“silenc[ing] conservative viewpoints and ideas.” Ibid. The
Governor, in signing the legislation, echoed the point: The
companies were fomenting a “dangerous movement” to “si-
lence” conservatives. Id., at 1108; see id., at 1099 (“[S]ilenc-
ing conservative views is un-American, it's un-Texan and it's
about to be illegal in Texas”).
But a State may not interfere with private actors' speech
to advance its own vision of ideological balance. States (and
their citizens) are of course right to want an expressive
realm in which the public has access to a wide range of views.
That is, indeed, a fundamental aim of the First Amendment.
But the way the First Amendment achieves that goal is by
preventing the government from “tilt[ing] public debate in a
preferred direction.” Sorrell v. IMS Health Inc., 564 U. S.
552, 578–579 (2011). It is not by licensing the government
to stop private actors from speaking as they wish and pre-
ferring some views over others. And that is so even when
those actors possess “enviable vehicle[s]” for expression.
Hurley, 515 U. S., at 577. In a better world, there would be
fewer inequities in speech opportunities; and the government
can take many steps to bring that world closer. But it can-
not prohibit speech to improve or better balance the speech
market. On the spectrum of dangers to free expression,
Page Proof Pending Publication

742 MOODY
v. NETCHOICE, LLC
Opinion of the Court
there are few greater than allowing the government to
change
the speech of private actors in order to achieve its
own conception of speech nirvana. That is why we have said
in so many contexts that the government may not “restrict
the speech of some elements of our society in order to en-
hance the relative voice of others.” Buckley v. Valeo, 424
U. S. 1, 48–49 (1976) (per curiam). That unadorned interest
is not “unrelated to the suppression of free expression,” and
the government may not pursue it consistent with the First
Amendment.
The Court's decisions about editorial control, as discussed
earlier, make that point repeatedly. See supra, at 732–733.
Again, the question those cases had in common was whether
the government could force a private speaker, including a
compiler and curator of third-party speech, to convey views
it disapproved. And in most of those cases, the government
defended its regulation as yielding greater balance in the
marketplace of ideas. But the Cour t —i n To r n i ll o, i n
PG&E, and again in Hurley—held that such an interest could
not support the government's effort to alter the speaker's
own expression. “Our cases establish,” the PG&E Court
wrote, “that the State cannot advance some points of view
by burdening the expression of others.” 475 U. S., at 20.
So the newspaper, the public utility, the parade organizer—
whether acting “fair[ly] or unfair[ly]”—could exclude the un-
wanted message, free from government interference. Tor-
nillo, 418 U. S., at 258; see United States Telecom Assn. v.
FCC, 855 F. 3d 381, 432 (CADC 2017) (Kavanaugh, J., dis-
senting from denial of rehearing en banc) (“[E]xcept in rare
circumstances, the First Amendment does not allow the Gov-
ernment to regulate the content choices of private editors
just so that the Government may enhance certain voices and
alter the content available to the citizenry”).
10
10
Texas claims Turner as a counter-example, but that decision offers
no help to speak of. Turner did indeed hold that the FCC's must-carry
provisions, requiring cable operators to give some of their channel space
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
743
Opinion of the Court
The case here is no different. The interest Texas asserts
is
in changing the balance of speech on the major platforms'
feeds, so that messages now excluded will be included. To
describe that interest, the State borrows language from this
Court's First Amendment cases, maintaining that it is pre-
venting “viewpoint discrimination.” Brief for Texas 19; see
supra, at 740–741. But the Court uses that language to say
what governments cannot do: They cannot prohibit private
actors from expressing certain views. When Texas uses
that language, it is to say what private actors cannot do:
They cannot decide for themselves what views to convey.
The innocent-sounding phrase does not redeem the prohib-
ited goal. The reason Texas is regulating the content-
moderation policies that the major platforms use for their
feeds is to change the speech that will be displayed there.
Texas does not like the way those platforms are selecting
and moderating content, and wants them to create a different
expressive product, communicating different values and pri-
orities. But under the First Amendment, that is a prefer-
ence Texas may not impose.
IV
These are facial challenges, and that matters. To succeed
on its First Amendment claim, NetChoice must show that
to local broadcast stations, passed First Amendment muster. See supra,
at 729. But the interest there advanced was not to balance expressive
content; rather, the interest was to save the local-broadcast industry, so
that it could continue to serve households without cable. That interest,
the Court explained, was “unrelated to the content of expression” dissemi-
nated by either cable or broadcast speakers. Turner I, 512 U. S. 622,
647 (1994). And later, the Hurley Court again noted the difference. It
understood the Government interest in Turner as one relating to competi-
tion policy: The FCC needed to limit the cable operators' “monopolistic,”
gatekeeping position “in order to allow for the survival of broadcasters.”
515 U. S., at 577. Unlike in regulating the parade—or here in regulating
Facebook's News Feed or YouTube's homepage—the Government's inter-
est was “not the alteration of speech.” Ibid. And when that is so, the
prospects of permissible regulation are entirely different.
Page Proof Pending Publication

Page Proof Pending Publication
744 MOODY
v. NETCHOICE, LLC
Opinion of the Court
the law at issue (whether from Texas or from Florida) “pro-
h
ibits a substantial amount of protected speech relative to
its plainly legitimate sweep.” Hansen, 599 U. S., at 770.
None of the parties below focused on that issue; nor did the
Fifth or Eleventh Circuits. But that choice, unanimous as
it has been, cannot now control. Even in the First Amend-
ment context, facial challenges are disfavored, and neither
parties nor courts can disregard the requisite inquiry into
how a law works in all of its applications. So on remand,
each court must evaluate the full scope of the law's coverage.
It must then decide which of the law's applications are consti-
tutionally permissible and which are not, and fnally weigh
the one against the other. The need for NetChoice to carry
its burden on those issues is the price of its decision to chal-
lenge the laws as a whole.
But there has been enough litigation already to know that
the Fifth Circuit, if it stayed the course, would get wrong at
least one signifcant input into the facial analysis. The par-
ties treated Facebook's News Feed and YouTube's homepage
as the heartland applications of the Texas law. At least on
the current record, the editorial judgments infuencing the
content of those feeds are, contrary to the Fifth Circuit's
view, protected expressive activity. And Texas may not in-
terfere with those judgments simply because it would prefer
a different mix of messages. How that matters for the req-
uisite facial analysis is for the Fifth Circuit to decide. But
it should conduct that analysis in keeping with two First
Amendment precepts. First, presenting a curated and “ed-
ited compilation of [third party] speech” is itself protected
speech. Hurley, 515 U. S., at 570. And second, a State
“cannot advance some points of view by burdening the ex-
pression of others.” PG&E, 475 U. S., at 20. To give gov-
ernment that power is to enable it to control the expression
of ideas, promoting those it favors and suppressing those it
does not. And that is what the First Amendment protects
all of us from.

Cite
as: 603 U. S. 707 (2024)
745
Barrett, J., concurring
We accordingly vacate the judgments of the Courts of Ap-
pea
ls for the Fifth and Eleventh Circuits and remand the
cases for further proceedings consistent with this opinion.
It is so ordered.
Justice Barrett, concurring.
I join the Court's opinion, which correctly articulates and
applies our First Amendment precedent. In this respect,
the Eleventh Circuit's understanding of the First Amend-
ment's protection of editorial discretion was generally cor-
rect; the Fifth Circuit's was not.
But for the reasons the Court gives, these cases illustrate
the dangers of bringing a facial challenge. If NetChoice's
members are concerned about preserving their editorial dis-
cretion with respect to the services on which they have fo-
cused throughout this litigation—e. g., Facebook's Newsfeed
and YouTube's homepage—they would be better served by
bringing a First Amendment challenge as applied to those
functions. Analyzing how the First Amendment bears on
those functions is complicated enough without simultane-
ously ana lyzi ng how it bears on a platfor m's other
functions—e. g., Facebook Messenger and Google Search—
much less to distinct platforms like Uber and Etsy. In fact,
dealing with a broad swath of varied platforms and functions
in a facial challenge strikes me as a daunting, if not impossi-
ble, task. A function qualifes for First Amendment protec-
tion only if it is inherently expressive. Hurley v. Irish-
American Gay, Lesbian and Bisexual Group of Boston, Inc.,
515 U. S. 557, 568 (1995). Even for a prototypical social-
media feed, making this determination involves more than
meets the eye.
Consider, for instance, how platforms use algorithms to
prioritize and remove content on their feeds. Assume that
human beings decide to remove posts promoting a particular
political candidate or advocating some position on a public-
health issue. If they create an algorithm to help them iden-
Page Proof Pending Publication

746 MOODY
v. NETCHOICE, LLC
Barrett, J., concurring
tify and delete that content, the First Amendment protects
their
exercise of editorial judgment—even if the algorithm
does most of the deleting without a person in the loop. In
that event, the algorithm would simply implement human
beings' inherently expressive choice “to exclude a message
[they] did not like from” their speech compilation. Id., at
574.
But what if a platform's algorithm just presents automati-
cally to each user whatever the algorithm thinks the user
will like—e. g., content similar to posts with which the user
previously engaged? See ante, at 736, n. 5. The First
Amendment implications of the Florida and Texas laws
might be different for that kind of algorithm. And what
about AI, which is rapidly evolving? What if a platform's
owners hand the reins to an AI tool and ask it simply to
remove “hateful” content? If the AI relies on large lan-
guage models to determine what is “hateful” and should be
removed, has a human being with First Amendment rights
made an inherently expressive “choice . . . not to propound a
particular point of view”? Hurley, 515 U. S., at 575. In
other words, technology may attenuate the connection be-
tween content-moderation actions (e. g., removing posts) and
human beings' constitutionally protected right to “decide for
[themselves] the ideas and beliefs deserving of expression,
consideration, and adherence.” Turner Broadcasting Sys-
tem, Inc. v. FCC, 512 U. S. 622, 641 (1994) (emphasis added).
So the way platforms use this sort of technology might have
constitutional signifcance.
There can be other complexities too. For example, the
corporate structure and ownership of some platforms may
be relevant to the constitutional analysis. A speaker's right
to “decide `what not to say' ” is “enjoyed by business corpora-
tions generally.” Hurley, 515 U. S., at 573–574 (quoting Pa-
cifc Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475
U. S. 1, 16 (1986)). Corporations, which are composed of
human beings with First Amendment rights, possess First
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
747
Barrett, J., concurring
Amendment rights themselves. See Citizens United v. Fed-
e
ral Election Comm'n, 558 U. S. 310, 365 (2010); cf. Burwell
v. Hobby Lobby Stores, Inc., 573 U. S. 682, 706–707 (2014).
But foreign persons and corporations located abroad do not.
Agency for Int'l Development v. Alliance for Open Society
Int'l, Inc., 591 U. S. 430, 433–436 (2020). So a social-media
platform's foreign ownership and control over its content-
moderation decisions might affect whether laws overriding
those decisions trigger First Amendment scrutiny. What if
the platform's corporate leadership abroad makes the policy
decisions about the viewpoints and content the platform
will disseminate? Would it matter that the corporation
employs Amer icans to develop and implement content-
moderation algorithms if they do so at the direction of for-
eign executives? Courts may need to confront such questions
when applying the First Amendment to certain platforms.
These are just a few examples of questions that might
arise in litigation that more thoroughly exposes the relevant
facts about particular social-media platforms and functions.
The answers in any given case might cast doubt on—or
might vindicate—a social-media company's invocation of its
First Amendment rights. Regardless, the analysis is bound
to be fact intensive, and it will surely vary from function to
function and platform to platform. And in a facial challenge,
answering all of those questions isn't even the end of the
story: The court must then fnd a way to measure the uncon-
stitutional relative to the constitutional applications to deter-
mine whether the law “prohibits a substantial amount of pro-
tected speech relative to its plainly legitimate sweep.”
United States v. Hansen, 599 U. S. 762, 770 (2023) (internal
quotation marks omitted).
A facial challenge to either of these laws likely forces a
court to bite off more than it can chew. An as-applied chal-
lenge, by contrast, would enable courts to home in on
whether and how specifc functions—like feeds versus direct
messaging—are inherently expressive and answer platform-
Page Proof Pending Publication

748 MOODY
v. NETCHOICE, LLC
Opinion of Jackson, J.
and function-specifc questions that might bear on the First
Amendment
analysis. While the governing constitutional
principles are straightforward, applying them in one fell
swoop to the entire social-media universe is not.
Justice Jackson, concurring in part and concurring in
the judgment.
These cases present a complex clash between two novel
state laws and the alleged First Amendment rights of sev-
eral of the largest social media platforms. Some things are
already clear. Not every potential action taken by a social
media company will qualify as expression protected under
the First Amendment. But not every hypothesized regula-
tion of such a company's operations will necessarily be able
to withstand the force of the First Amendment's protections
either. Beyond those broadest of statements, it is diffcult
to say much more at this time. With these records and
lower court decisions, we are not able to adequately evaluate
whether the challenged state laws are facially valid.
That is in no small part because, as all Members of the
Court acknowledge, plaintiffs bringing a facial challenge
must clear a high bar. See ante, at 723–724 (majority opin-
ion); post, at 777–778 (Alito, J., concurring in judgment).
The Eleventh Circuit failed to appreciate the nature of this
challenge, and the Fifth Circuit did not adequately evaluate
it. That said, I agree with Justice Barrett that the Elev-
enth Circuit at least fairly stated our First Amendment prec-
edent, whereas the Fifth Circuit did not. See ante, at 745
(concurring opinion); see also ante, at 727–733 (majority opin-
ion). On remand, then, both courts will have to undertake
their legal analyses anew.
In doing so, the lower courts must address these cases at
the right level of specifcity. The question is not whether an
entire category of corporations (like social media companies)
or a particular entity (like Facebook) is generally engaged in
expression. Nor is it enough to say that a given activity
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
749
Thomas, J., concurring in judgment
(say, content moderation) for a particular service (the News
F
eed, for example) seems roughly analogous to a more famil-
iar example from our precedent. Cf. Red Lion Broadcast-
ing Co. v. FCC, 395 U. S. 367, 386 (1969) (positing that “differ-
ences in the characteristics of new media justify differences
in the First Amendment standards applied to them”). Even
when evaluating a broad facial challenge, courts must make
sure they carefully parse not only what entities are regu-
lated, but how the regulated activities actually function be-
fore deciding if the activity in question constitutes expres-
sion and therefore comes within the First Amendment's
ambit. See Brief for Knight First Amendment Institute at
Columbia University as Amicus Curiae 11–12. Thus, fur-
ther factual development may be necessary before either of
today's challenges can be fully and fairly addressed.
In light of the high bar for facial challenges and the state
of these cases as they come to us, I would not go on to treat
either like an as-applied challenge and preview our potential
ruling on the merits. Faced with diffcult constitutional is-
sues arising in new contexts on undeveloped records, this
Court should strive to avoid deciding more than is necessary.
See Ashwander v. TVA, 297 U. S. 288, 346–347 (1936) (Bran-
deis, J., concurring). In my view, such restraint is war-
ranted today.
Justice Thomas, concurring in the judgment.
I agree with the Court's decision to vacate and remand
because NetChoice and the Computer and Communications
Industry Association (together, the trade associations) have
not established that Texas's H. B. 20 and Florida's S. B. 7072
are facially unconstitutional.
I cannot agree, however, with the Court's decision to opine
on certain applications of those statutes. The Court's dis-
cussion is unnecessary to its holding. See Jama v. Immi-
gration and Customs Enforcement, 543 U. S. 335, 351, n. 12
(2005) (“Dictum settles nothing, even in the court that utters
Page Proof Pending Publication

750 MOODY
v. NETCHOICE, LLC
Thomas, J., concurring in judgment
it”). Moreover, the Court engages in the exact type of anal-
ysis
that it chastises the Courts of Appeals for performing.
It faults the Courts of Appeals for focusing on only one sub-
set of applications, rather than determining whether each
statute's “full range of applications” is constitutional. See
ante, at 724, 726. But, the Court repeats that very same
error. Out of the sea of “variegated and complex” functions
that platforms perform, ante, at 725, the Court plucks out
two (Facebook's News Feed and YouTube's homepage), and
declares that they may be protected by the First Amend-
ment. See ante, at 740 (opining on what the “current record
suggests”). The Court does so on a record that it itself de-
scribes as “incomplete” and “underdeveloped,” ante, at 726,
734, and by sidestepping several pressing factual and legal
questions, see post, at 793–796 (Alito, J., concurring in judg-
ment). As Justice Alito explains, the Court's approach is
both unwarranted and mistaken. See ibid.
I agree with Justice Alito's analysis and join his opinion
in full. I write separately to add two observations on the
merits and to highlight a more fundamental jurisdictional
problem. The trade associations have brought facial chal-
lenges alleging that H. B. 20 and S. B. 7072 are unconstitu-
tional in many or all of their applications. But, Article III
of the Constitution permits federal courts to exercise judicial
power only over “Cases” and “Controversies.” Accordingly,
federal courts can decide whether a statute is constitutional
only as applied to the parties before them—they lack author-
ity to deem a statute “facially” unconstitutional.
I
As Justice Alito explains, the trade associations have
failed to provide many of the basic facts necessary to evalu-
ate their challenges to H. B. 20 and S. B. 7072. See post, at
786–793. I make two additional observations.
First, with respect to certain provisions of H. B. 20 and
S. B. 7072, the Court assumes that the framework outlined
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
751
Thomas, J., concurring in judgment
in Zauderer v. Offce of Disciplinary Counsel of Supreme
C
ourt of Ohio, 471 U. S. 626 (1985), applies. See ante, at
725. In that case, the Court held that laws requiring the
disclosure of factual information in commercial advertising
may satisfy the First Amendment if the disclosures are “rea-
sonably related” to the Government's interest in preventing
consumer deception. 471 U. S., at 651. Because the trade
associations did not contest Zauderer's applicability before
the Eleventh Circuit and both lower courts applied its frame-
work, I agree with the Court's decision to rely upon Zaud-
erer at this stage. However, I think we should reconsider
Zauderer and its progeny. “I am skeptical of the premise
on which Zauderer rests—that, in the commercial-speech
context, the First Amendment interests implicated by disclo-
sure requirements are substantially weaker than those at
stake when speech is actually suppressed.” Milavetz, Gal-
lop & Milavetz, P. A. v. United States, 559 U. S. 229, 255
(2010) (Thomas, J., concurring in part and concurring in
judgment) (internal quotation marks omitted).
Second, the common-carrier doctrine should continue to
guide the lower courts' examination of the trade associations'
claims on remand. See post, at 782–783, and n. 17, 794 (opin-
ion of Alito, J.). “[O]ur legal system and its British prede-
cessor have long subjected certain businesses, known as
common carriers, to special regulations, including a general
requirement to serve all comers.” Biden v. Knight First
Amendment Institute at Columbia Univ., 593 U. S. 901, 903–
904 (2021) (Thomas, J., concurring in grant of certiorari).
Moreover, “there is clear historical precedent for regulating
transportation and communications networks in a similar
manner as traditional common carriers” given their many
similarities. Id., at 904. Though they reached different
conclusions, both the Fifth Circuit and the Eleventh Circuit
appropriately strove to apply the common-carrier doctrine
in assessing the constitutionality of H. B. 20 and S. B. 7072
respectively. See 49 F. 4th 439, 469–480 (CA5 2022); Net-
Page Proof Pending Publication

752 MOODY
v. NETCHOICE, LLC
Thomas, J., concurring in judgment
Choice v. Attorney Gen., Fla., 34 F. 4th 1196, 1219–1222
(
CA11 2022).
The common-carrier doctrine may have weighty implica-
tions for the trade associations' claims. But, the same fac-
tual barriers that preclude the Court from assessing the
trade associations' claims under our First Amendment prece-
dents also prevent us from applying the common-carrier doc-
trine in this posture. At a minimum, we would need to
pinpoint the regulated parties and specifc conduct being
regulated. On remand, however, both lower courts should
continue to consider the common-carrier doctrine.
II
The opinions in these cases detail many of the considerable
hurdles that currently preclude resolution of the trade asso-
ciations' claims. See ante, at 723–724; ante, at 745–747
(Barrett, J., concurring); post, at 786–796 (opinion of Alito,
J.). The most signifcant problem of all, however, has yet to
be addressed: Federal courts lack authority to adjudicate the
trade associations' facial challenges.
Rather than allege that the statutes impermissibly regu-
late them, the trade associations assert that H. B. 20 and
S. B. 7072 are actually unconstitutional in most or all of their
applications. This type of challenge, called a facial chal-
lenge, is “an attack on a statute itself as opposed to a particu-
lar application.” Los Angeles v. Patel, 576 U. S. 409, 415
(2015).
Facial challenges are fundamentally at odds with Article
III. Because Article III limits federal courts' judicial power
to cases or controversies, federal courts “lac[k] the power
to pronounce that [a] statute is unconstitutional” as applied
to nonparties. Americans for Prosperity Foundation v.
Bonta, 594 U. S. 595, 621 (2021) (Thomas, J., concurring in
part and concurring in judgment) (internal quotation marks
omitted). Entertaining facial challenges in spite of that lim-
itation arrogates powers reserved to the political branches
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
753
Thomas, J., concurring in judgment
and disturbs the relationship between the Federal Govern-
ment
and the States. The practice of adjudicating facial
challenges creates practical concerns as well. Facial chal-
lenges' dubious historical roots further confrm that the doc-
trine should have no place in our jurisprudence.
A
1
Article III empowers federal courts to exercise “judicial
Power” only over “Cases” and “Controversies.” This Court
has long recognized that those terms impose substantive con-
straints on the authority of federal courts. See Muskrat v.
United States, 219 U. S. 346, 356–358 (1911); see also Steel
Co. v. Citizens for Better Environment, 523 U. S. 83, 102
(1998). One corollary of the case-or-controversy require-
ment is that while federal courts can judge the constitution-
ality of statutes, they may do so only to the extent necessary
to resolve the case at hand. “It is emphatically the province
and duty of the judicial department to say what the law is,”
but only because “[t]hose who apply the rule to particular
cases, must of necessity expound and interpret that rule.”
Marbury v. Madison, 1 Cranch 137, 177 (1803); see Liver-
pool, New York & Philadelphia S. S. Co. v. Commissioners
of Emigration, 113 U. S. 33, 39 (1885) (“[The Court] has no
jurisdiction to pronounce any statute . . . irreconcilable with
the Constitution, except as it is called upon to adjudge the
legal rights of litigants in actual controversies”). Accord-
ingly, “[e]xcept when necessary” to resolve a case or con-
troversy, “courts have no charter to review and revise leg-
islative and executive action.” Summers v. Earth Island
Institute, 555 U. S. 488, 492 (2009); see United States v.
Raines, 362 U. S. 17, 20–21 (1960).
These limitations on the power of judicial review play an
essential role in preserving our constitutional structure.
Our Constitution sets forth a “tripartite allocation of power,”
separating different types of powers across three co-equal
Page Proof Pending Publication

754 MOODY
v. NETCHOICE, LLC
Thomas, J., concurring in judgment
branches. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332,
341
(2006) (internal quotation marks omitted). “[E]ach
branch [is vested] with an exclusive form of power,” and “no
branch can encroach upon the powers confded to the others.”
Patchak v. Zinke, 583 U. S. 244, 250 (2018) (plurality opinion)
(internal quotation marks omitted). In the Judicial Branch's
case, it is vested with the “ultimate and supreme” power of
judicial review. Chicago & Grand Trunk R. Co. v. Wellman,
143 U. S. 339, 345 (1892). That power includes the authority
to refuse to apply a statute enacted and approved by the
other two branches of the Federal Government. But, the
power of judicial review can be wielded only in specifc cir-
cumstances and to limited ends—to resolve cases and contro-
versies. Without that limitation, the Judiciary would have
an unchecked ability to enjoin duly enacted statutes. Re-
specting the case-or-controversy requirement is therefore
necessary to “preven[t] the Federal Judiciary from intruding
upon the powers given to the other branches, and confn[e]
the federal courts to a properly judicial role.” Town of
Chester v. Laroe Estates, Inc., 581 U. S. 433, 438 (2017) (in-
ternal quotation marks and alteration omitted).
2
Facia l cha l lenges confl ic t w ith Ar ticle III's case-or-
controversy requirement because they ask a federal court to
decide whether a statute might confict with the Constitution
in cases that are not before the court.
To bring a facial challenge under our precedents, a plaintiff
must ordinarily “establish that no set of circumstances exists
under which the Act would be valid.” United States v. Sa-
lerno, 481 U. S. 739, 745 (1987). In the First Amendment
context, we have sometimes applied an even looser standard,
called the overbreadth doctrine. The overbreadth doctrine
requires a plaintiff to establish only that a statute “prohibits
a substantial amount of protected speech,” “relative to [its]
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
755
Thomas, J., concurring in judgment
plainly legitimate sweep.” United States v. Williams, 553
U
. S. 285, 292 (2008).
Facial challenges ask courts to issue holdings that are
rarely, if ever, required to resolve a single case or contro-
versy. The only way a plaintiff gets into a federal court is
by showing that he “personally has suffered some actual or
threatened injury as a result of the putatively illegal conduct
of the defendant.” Blum v. Yaretsky, 457 U. S. 991, 999
(1982) (internal quotation marks omitted). And, the only
remedy a plaintiff should leave a federal court with is one
“limited to the inadequacy that produced the injury in fact
that the plaintiff has established.” Lewis v. Casey, 518 U. S.
343, 357 (1996). Accordingly, once a court decides whether
a statute can be validly enforced against the plaintiff who
challenges it, that case or controversy is resolved. Either
the court remedies the plaintiff 's injury, or it determines that
the statute may be constitutionally applied to the plaintiff.
Proceeding to decide the merits of possible constitutional
challenges that could be brought by other plaintiffs is not
necessary to resolve that case. Instead, any holding with
respect to potential future plaintiffs would be “no more than
an advisory opinion—which a federal court should never
issue at all, and especially should not issue with regard to a
constitutional question, as to which we seek to avoid even
nonadvisory opinions.” Chicago v. Morales, 527 U. S. 41, 77
(1999) (Scalia, J., dissenting) (citation omitted).
Unsurprisingly, facial challenges are at odds with doc-
trines enforcing the case-or-controversy requirement. Pur-
suant to standing doctrine, for example, a plaintiff can main-
t ai n a suit i n a federa l cour t —and thus invoke judicia l
power—only if he has suffered an “injury” with a “traceable
connection” to the “complained-of conduct of the defendant.”
Steel Co., 523 U. S., at 103. Facial challenges signifcantly
relax those rules. Start with the injury requirement. Fa-
cial challenges allow a plaintiff to challenge applications of a
Page Proof Pending Publication

Page Proof Pending Publication
756 MOODY
v. NETCHOICE, LLC
Thomas, J., concurring in judgment
statute that have not injured him. But see Acheson Hotels,
LLC
v. Laufer, 601 U. S. 1, 10 (2023) (Thomas, J., concurring
in judgment) (“To have standing, a plaintiff must assert a
violation of his [own] rights”). In fact, under our First
Amendment overbreadth doctrine, a plaintiff need not be in-
jured at all; he can challenge a statute that lawfully applies
to him so long as it would be unlawful to enforce it against
others. See United States v. Hansen, 599 U. S. 762, 769
(2023).
Facial challenges also distort standing doctrine's redress-
ability requirement. The Court has held that a plaintiff has
standing to sue only when his “requested relief will redress
the alleged injury.” Steel Co., 523 U. S., at 103. With a fa-
cial challenge, however, a plaintiff seeks to enjoin every ap-
plication of a statute—including ones that have nothing to
do with his injury. A plaintiff can ask, “Do [I] just want
[the court] to say that this statute cannot constitutionally be
applied to [me] in this case, or do [I] want to go for broke and
try to get the statute pronounced void in all its applications?”
Morales, 527 U. S., at 77 (opinion of Scalia, J.). In this sense,
the remedy sought by a facial challenge is akin to a universal
injunction—a practice that is itself “inconsistent with long-
standing limits on equitable relief and the power of Arti-
cle III courts.” Trump v. Hawaii, 585 U. S. 667, 713 (2018)
(Thomas, J., concurring); see Department of Homeland Se-
curity v. New York, 589 U. S. 1178, 1180–1182 (2020) (Gor-
such, J., concurring in grant of stay); FDA v. Alliance for
Hippocratic Medicine, 602 U. S. 367, 402 (2024) (Thomas,
J., concurring).
Because deciding the constitutionality of a statute as ap-
plied to nonparties is not necessary to resolve a case or con-
troversy, it is beyond a federal court's constitutional author-
ity. Federal courts have “no power per se to review and
annul acts of Congress on the ground that they are unconsti-
tutional. That question may be considered only when the
justifcation for some direct injury suffered or threatened,

Cite
as: 603 U. S. 707 (2024)
757
Thomas, J., concurring in judgment
presenting a justiciable issue, is made to rest upon such an
ac
t.” Massachusetts v. Mellon, 262 U. S. 447, 488 (1923).
Resolving facial challenges thus violates Article III.
1
3
Adjudicating facial challenges also intrudes upon powers
reserved to the Legislative and Executive Branches and the
States. When a federal court decides an issue unnecessary
for resolving a case or controversy, the Judiciary assumes
authority beyond what the Constitution granted. Supra, at
753–754. That necessarily alters the balance of powers:
When one branch exceeds its vested power, it becomes
stronger relative to the other branches. See Free Enter-
prise Fund v. Public Company Accounting Oversight Bd.,
561 U. S. 477, 500 (2010).
Moreover, by exceeding their Article III powers, federal
courts risk interfering with the executive and legislative
functions. Facial challenges enable federal courts to re-
view the constitutionality of a statute in many or all of its
applications—often before the statute has even been en-
forced. In practice, this provides federal courts a “general
veto power . . . upon the legislation of Congress.” Muskrat,
219 U. S., at 357. But, the Judicial Branch has no such con-
stitutional role in lawmaking. When courts take on the su-
pervisory role of judging statutes in the abstract, they thus
“assume a position of authority over the governmental acts
of another and co-equal department, an authority which
plainly [they] do not possess.” Mellon, 262 U. S., at 489.
1
This is not to say that federal courts can never adjudicate a constitu-
tional claim if a plaintiff styles it as a facial challenge. Whenever a plain-
tiff alleges a statute is unconstitutional in many or all of its applications,
that argument nearly always includes an allegation that the statute is
unconstitutional as applied to the plaintiff. Federal courts are free to
consider challenged statutes as applied to the plaintiff before them and
limit any relief accordingly. See generally Americans for Prosperity
Foundation v. Bonta, 594 U. S. 595, 618–619 (2021); id., at 621 (Thomas,
J., concurring in part and concurring in judgment).
Page Proof Pending Publication

758 MOODY
v. NETCHOICE, LLC
Thomas, J., concurring in judgment
Comparing the effects of as-applied challenges and facial
cha
llenges makes this point clear. With an as-applied chal-
lenge, the Judiciary intrudes only as much as necessary on
the will “ `of the elected representatives of the people.' ”
Washington State Grange v. Washington State Republican
Party, 552 U. S. 442, 451 (2008). Assuming a court adheres
to traditional remedial limits, a successful as-applied chal-
lenge only prevents application of the statute against that
plaintiff. The Executive Branch remains free to enforce the
statute in all of its other applications. And, the court's deci-
sion provides some notice to the political branches, enabling
the Executive Branch to tailor future enforcement of the
statute to avoid violating the Constitution or Congress to
amend the statute.
Facial challenges, however, force the Judiciary to take a
maximalist approach. A single plaintiff can immediately
call upon a federal court to declare an entire statute uncon-
stitutional, even before it has been applied to him. The po-
litical branches have no opportunity to correct course, mak-
ing legislation an all-or-nothing proposition. The end result
is that “the democratic process” is “short circuit[ed]” and
“laws embodying the will of the people [are prevented] from
being implemented in a manner consistent with the Constitu-
tion.” Ibid.
In a similar vein, facial challenges distort the relationship
between the Federal Government and the States. The Con-
stitution “establishes a system of dual sovereignty between
the States and the Federal Government.” Gregory v. Ash-
croft, 501 U. S. 452, 457 (1991). The States retain all powers
“not delegated” to the Federal Government and not “prohib-
ited by [the Constitution] to the States.” Amdt. 10. Facial
challenges can upset this division by shifting power from the
States to the Federal Judiciary. Most obviously, when a
state law is challenged, a facial challenge prevents that State
from applying its own statute in a constitutional manner.
But, facial challenges can also force federal courts to appro-
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
759
Thomas, J., concurring in judgment
priate the role of state courts. To analyze whether a statute
is
valid on its face, a court must determine the statute's
scope. If a state court has yet to determine the scope of
its statute (a common occurrence with facial challenges), the
federal court must do so in the frst instance. Facial chal-
lenges thus increase the likelihood that federal courts must
interpret novel state-law questions—a role typically and ap-
propriately reserved for state courts.
B
In additi on to their constituti ona l i nfir mities, facia l
challenges also create practical problems. The case-or-
controversy requirement serves as the foundation of our ad-
versarial system. Rather than “ `sit[ting] as self-directed
boards of legal inquiry and research,' ” federal courts serve
as “ `arbiters of legal questions presented and argued by the
parties before them.' ” NASA v. Nelson, 562 U. S. 134, 147,
n. 10 (2011) (quoting Carducci v. Regan, 714 F. 2d 171, 177
(CADC 1983) (opinion for the court by Scalia, J.)). This sys-
tem “assure[s] that the legal questions presented to the court
will be resolved . . . in a concrete factual context conducive
to a realistic appreciation of the consequences of judicial ac-
tion.” Valley Forge Christian College v. Americans United
for Separation of Church and State, Inc., 454 U. S. 464, 472
(1982).
Facial challenges disrupt the adversarial system and in-
crease the risk of judicial error as a result. A plaintiff rais-
ing a facial challenge need not have any direct knowledge
of how the statute applies to others. In fact, since a facial
challenge may be brought before a statute has been enforced
against anyone, a plaintiff often can only guess how the
statute operates—even in his own case. For this reason,
“[c]laims of facial invalidity often rest on speculation,” Wash-
ington State Grange, 552 U. S., at 450, and “factually bare-
bones records,” Sabri v. United States, 541 U. S. 600, 609
(2004). Federal courts are often called to give “premature
Page Proof Pending Publication

760 MOODY
v. NETCHOICE, LLC
Thomas, J., concurring in judgment
interpretations of statutes in areas where their constitu-
ti
onal application might be cloudy.” Raines, 362 U. S., at 22.
In short, facial challenges ask courts to resolve potentially
thorny constitutional questions with little factual back-
ground and briefng by a party who may not be affected by
the outcome.
C
The problems with facial challenges are particularly evi-
dent in the two cases before us. Even though the trade
associations challenge two state laws, the state actors have
been left out of the picture. State offcials had no opportu-
nity to tailor the laws' enforcement. Nor could the legisla-
tures amend the statutes before they were preliminarily
enjoined. In addition, neither set of state courts had a
chance to interpret their own State's law or “accord [that]
law a limiting construction to avoid constitutional ques-
tions.” Washington State Grange, 552 U. S., at 450. In-
stead, federal courts construed these novel state laws in the
frst instance. And, they did so with little factual record to
assist them. The trade associations' reliance on our ques-
ti onable associati ona l-standing doc tr ine is par tia l ly to
blame.
2
But, the fact that the trade associations raise facial
challenges has undeniably played a signifcant role. With
2
The trade associations do not allege that they are subject to H. B. 20
and S. B. 7072, but have brought suit to vindicate the rights of their mem-
bers. There is thus not a single party in these suits that is actually regu-
lated by the challenged statutes and can explain how specifc provisions
will infringe on their First Amendment rights. Instead, the trade associ-
ations assert their understanding of how the challenged statutes will regu-
late nonparties.
As I have recently explained, “[a]ssociational standing raises constitu-
tional concerns.” See FDA v. Alliance for Hippocratic Medicine, 602
U. S. 367, 399 (2024) (concurring opinion). Associational standing appears
to confict with Article III's injury and redressability requirements in
many of the same ways as facial challenges. I have serious doubts that
either trade association has standing to vicariously assert a member's in-
jury. See id., at 400.
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
761
Thomas, J., concurring in judgment
even simple fact patterns, a court has little chance of deter-
mi
ning whether a novel, never-before-enforced state law can
be constitutionally enforced against nonparties without re-
sorting to mere speculation. For cases such as these, where
the constitutional analysis depends on complex, fact-specifc
questions, the task becomes impossible.
D
Facial challenges are particularly suspect given their ori-
gins. They appear to be the product of two doctrines that
are themselves constitutionally questionable, vagueness and
overbreadth.
At the time of the founding, it was well understood that
federal courts could hold a statute unconstitutional only inso-
far as necessary to resolve a particular case or controversy.
See supra, at 753–754. The Founders were certainly famil-
iar with alternative systems that provided for the free-foat-
ing review of duly enacted statutes. For example, the New
York Constitution of 1777 created a Council of Revision, com-
posed of the Governor, Chancellor, and New York Supreme
Court. See Hansen, 599 U. S., at 786 (Thomas, J., concur-
ring). The Council of Revision could object to “any measure
of a [prospective] bill” based on “not only [its] constitutional-
ity . . . but also [its] policy.” Id., at 787. If the Council
lodged an objection, the Legislature's only options were to
“conform to [the Council's] objections, override them by a
two-thirds vote of both Houses, or simply let the bill die.”
Ibid. (internal quotation marks omitted).
In our Constitution, the Founders refused to create a coun-
cil of revision or involve the Federal Judiciary in the business
of reviewing statutes in the abstract. “Despite the support
of respected delegates . . . the Convention voted against cre-
ating a federal council of revision on four different occasions.
No other proposal was considered and rejected so many
times.” Id., at 789 (citation omitted). Instead, the Found-
ers created a Judiciary with “only the authority to resolve
Page Proof Pending Publication

762 MOODY
v. NETCHOICE, LLC
Thomas, J., concurring in judgment
private disputes between particular parties, rather than mat-
ters
affecting the general public.” Ibid. (internal quotation
marks omitted). They considered judges “of all men the
most unft to have a veto on laws before their enactment.”
Ibid. (internal quotation marks omitted). Therefore, they
refused to enlist judges in the business of reviewing statutes
other than “as an issue for decision in a concrete case or
controversy.”
3
Ibid.
For more than a century following the founding, the Court
generally adhered to the original understanding of the nar-
row scope of judicial review. When the Court frst discussed
the concept of judicial review in Marbury v. Madison, it
made clear that such review is limited to what is necessary
for resolving a “particular cas[e]” before a court. 1 Cranch,
at 177; see also supra, at 753–754. And, in case after case
that followed Marbury, the Court reiterated that federal
courts have no authority to reach beyond the parties before
them to facially invalidate a statute.
4
3
“The later history of the New York Council of Revision demonstrates
the wisdom of the Framers' decision.” United States v. Hansen, 599 U. S.
762, 790 (2023) (Thomas, J., concurring). The Council's ability to lodge
objections proved signifcant: “Over the course of its existence, [the Coun-
cil] returned 169 bills to the legislature; the legislature, in turn, overrode
only 51 of those vetoes and reenacted at least 26 bills with modifcations.”
Ibid. The Council did not shy away from controversial or weighty mat-
ters either. It vetoed, among other things, “a bill barring those convicted
of adultery from remarrying ” and a bill “declar[ing] Loyalists aliens.”
Ibid. In fact, the bill authorizing the Erie Canal's construction—“one of
the most important measures in the Nation's history—survived the Coun-
cil's review only because Chancellor James Kent changed his deciding vote
at the last minute, seemingly on a whim.” Ibid. Concerns over the
Council's “intrusive involvement in the legislative process” eventually led
to its abolition in 1820. Ibid.
4
See, e. g., Austin v. Aldermen, 7 Wall. 694, 699 (1869) (holding that the
Court could “only consider the statute in connection with the case before”
it and thus “our jurisdiction [wa]s at an end” once it “ascertained that [the
case] wrought no effect which the act forbids”); Liverpool, New York &
Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39
(1885) (the Court “has no jurisdiction to pronounce any statute . . . irrecon-
cilable with the Constitution, except as it is called upon to adjudge the
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
763
Thomas, J., concurring in judgment
As best I can tell, the Court's frst departure from those
pr
inciples was the development of the vagueness doctrine.
See Johnson v. United States, 576 U. S. 591, 616–620 (2015)
(Thomas, J., concurring in judgment) (describing history of
vagueness doctrine). Before and at the time of the found-
ing, American and English courts dealt with vague laws by
“simply refus[ing] to apply them in individual cases.” Id.,
at 615. After the unfortunate rise of “substantive” due
process, however, American courts began striking down stat-
utes wholesale as “unconstitutionally indefinite. ” Id., at
617. This Court frst adopted that approach in 1914, see In-
ternational Harvester Co. of America v. Kentucky, 234 U. S.
216, and has since repeatedly used the vagueness doctrine
“to strike down democratically enacted laws” in the name of
substantive due process, Sessions v. Dimaya, 584 U. S. 148,
210 (2018) (Thomas, J., dissenting); see Johnson, 576 U. S.,
at 618–621 (opinion of Thomas, J.). As I have explained, I
doubt that “our practice of striking down statutes as uncon-
stitutionally vague is consistent with the original meaning of
the Due Process Clause.” Dimaya, 584 U. S., at 206 (opinion
of Thomas, J.); see Johnson, 576 U. S., at 622 (opinion of
Thomas, J.).
legal rights of litigants in actual controversies”); Chicago & Grand Trunk
R. Co. v. Wellman, 143 U. S. 339, 345 (1892) (explaining that judicial review
of a statute's constitutionality “is legitimate only in the last resort, and as
a necessity in the determination of real, earnest and vital controversy
between individuals”); Muskrat v. United States, 219 U. S. 346, 357 (1911)
(“[T]here [i]s no general veto power in the court upon the legislation of
Congress”); Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226
U. S. 217, 219 (1912) (rejecting argument that statute was “void in toto,”
because the Court “must deal with the case in hand and not with imagi-
nary ones”); Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 289
(1921) (“[A] litigant can be heard to question a statute's validity only when
and so far as it is being or is about to be applied to his disadvantage”);
Massachusetts v. Mellon, 262 U. S. 447, 488 (1923) (Federal courts “have
no power per se to review and annul acts of Congress on the ground that
they are unconstitutional. That question may be considered only when
the justifcation for some direct injury suffered or threatened, presenting
a justiciable issue, is made to rest upon such an act”).
Page Proof Pending Publication

764 MOODY
v. NETCHOICE, LLC
Thomas, J., concurring in judgment
The vagueness doctrine was the direct ancestor of one sub-
set
of modern facial challenges, the overbreadth doctrine.
See United States v. Sineneng-Smith, 590 U. S. 371, 385
(2020) (Thomas, J., concurring) (noting that the overbreadth
doctrine “developed as a result of the vagueness doctrine's
application in the First Amendment context”). In Thorn-
hill v. Alabama, 310 U. S. 88 (1940), the Court deemed an
antipicketing statute “invalid on its face” due to its “sweep-
ing proscription of freedom of discussion.” Id., at 101–106.
The Thornhill Court did so “[w]ithout considering whether
the defendant's actual conduct was entitled to First Amend-
ment protection,” instead invalidating the law because it
“ `swept within its ambit . . . activities that in ordinary cir-
cumstances constitute an exercise of freedom of speech or of
the press.' ” Sineneng-Smith, 590 U. S., at 383 (opinion of
Thomas, J.) (quoting Thornhill, 310 U. S., at 97; alteration
omitted).
Thornhill's approach quickly gained traction in the First
Amendment context. In the years to follow, the Court “in-
voked [its] rationale to facially invalidate a wide range of
laws” concerning First Amendment rights—a practice that
became known as the overbreadth doctrine. Sineneng-
Smith, 590 U. S., at 383. Under that doctrine, a court can
invalidate a statute if it “prohibits a substantial amount of
protected speech,” “relative to the statute's plainly legiti-
mate sweep.”
5
Williams, 553 U. S., at 292. The Court has
never attempted to ground the overbreadth doctrine “in the
text or history of the First Amendment.” Sineneng-Smith,
590 U. S., at 384 (opinion of Thomas, J.). Instead, the Court
has supplied only “policy considerations and value judg-
ments.” Ibid.
5
Although the Court's precedents describe an unconstitutionally over-
broad statute as facially “invalid,” “federal courts have no authority to
erase a duly enacted law from the statute books.” J. Mitchell, The Writ-
of-Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018); see Sineneng-Smith,
590 U. S., at 387 (opinion of Thomas, J.).
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
765
Thomas, J., concurring in judgment
The overbreadth and vagueness doctrines' method of facial
i
nvalidation eventually spread to other areas of law, setting
in motion our modern facial challenge doctrine. For several
decades after Thornhill, the Court continued to resist the
broad use of facial challenges. For example, in Broadrick
v. Oklahoma, 413 U. S. 601 (1973), the Court emphasized that
“[c]onstitutional judgments, as Mr. Chief Justice Marshall
recognized, are justifed only out of the necessity of adju-
dicating rights in particular cases between the litigants
brought before the Court.” Id., at 611. In that vein, the
Court characterized “facial overbreadth adjudication [as]
an exception to our traditional rules of practice.” Id.,
at 615. But, the Court eventually entertained facial chal-
lenges more broadly where a plaintiff established that “no
set of circumstances exists under which the Act would be
valid.”
6
Salerno, 481 U. S., at 745. Just as with the over-
breadth doctrine, the Court has yet to explain how facial
challenges are consistent with the Constitution's text or
history.
Given how our facial challenge doctrine seems to have
developed—with one doctrinal mistake leading to another—
it is no wonder that facial challenges create a host of consti-
tutional and practical issues. See supra, at 754–761. Rather
than perpetuate our mistakes, the Court should end them.
“No principle is more fundamental to the judiciary's proper
role in our system of government than the constitutional lim-
itation of federal-court jurisdiction to actual cases or contro-
versies.” Simon v. Eastern Ky. Welfare Rights Organiza-
tion, 426 U. S. 26, 37 (1976). Because that requirement
precludes courts from judging and enjoining statutes as ap-
6
Some Members of the Court subsequently sought to apply a more le-
nient standard to all facial challenges. See Washington State Grange v.
Washington State Republican Party, 552 U. S. 442, 449 (2008) (noting that
“some Members of the Court have criticized the Salerno formulation”);
United States v. Stevens, 559 U. S. 460, 472 (2010) (reserving the question
of which standard applies to “a typical facial attack”).
Page Proof Pending Publication

766 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
plied to nonparties, the Court should discontinue the practice
of
facial challenges.
***
The Court has recognized the problems that facial chal-
lenges pose, emphasizing that they are “disfavored,” Wash-
ington State Grange, 552 U. S., at 450, and “best when infre-
quent,” Sabri, 541 U. S., at 608. The Court reiterates those
sentiments today. Ante, at 723–724, 743–744. But, while
sidelining facial challenges provides some measure of relief,
it ignores the real problem. Because federal courts are
bound by Article III's case-or-controversy requirement,
holding a statute unconstitutional as applied to nonparties is
not simply disfavored—it exceeds the authority granted to
federal courts. It is high time the Court reconsiders its fa-
cial challenge doctrine.
Justice Alito, with whom Justice Thomas and Justice
Gorsuch join, concurring in the judgment.
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.
I agree with the bottom line of the majority's central hold-
ing. But its description of the Florida and Texas laws, as
well as the litigation that shaped the question before us,
leaves much to be desired. Its summary of our legal prece-
dents is incomplete. And its broader ambition of providing
guidance on whether one part of the Texas law is unconstitu-
tional as applied to two features of two of the many plat-
forms that it reaches—namely, Facebook's News Feed and
YouTube's homepage—is unnecessary and unjustifed.
But given the incompleteness of this record, there is no
need and no good reason to decide anything other than the
facial unconstitutionality question actually before us. After
all, we do not know how the platforms “moderate” their
users' content, much less whether they do so in an inherently
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
767
Alito, J., concurring in judgment
expressive way under the First Amendment. Nevertheless,
the
majority is undeterred. It inexplicably singles out a few
provisions and a couple of platforms for special treatment.
And it unrefectively assumes the truth of NetChoice's un-
supported assertion that social-media platforms—which use
secret algorithms to review and moderate an almost unimag-
inable quantity of data today—are just as expressive as the
newspaper editors who marked up typescripts in blue pencil
50 years ago.
These as-applied issues are important, and we may have
to decide them before too long. But these cases do not pro-
vide the proper occasion to do so. For these reasons, I am
therefore compelled to provide a more complete discussion
of those matters than is customary in an opinion that concurs
only in the judgment.
I
As the Court has recognized, social-media platforms have
become the “modern public square.” Packingham v. North
Carolina, 582 U. S. 98, 107 (2017). In just a few years, they
have transformed the way in which millions of Americans
communicate with family and friends, perform daily chores,
conduct business, and learn about and comment on current
events. The vast majority of Americans use social media,
1
and the average person spends more than two hours a day
on various platforms.
2
Young people now turn primarily to
social media to get the news,
3
and for many of them, life
1
J. Gottfried, Pew Research Center, Americans' Social Media Use 3
(2024). As platforms incorporate new features and technology, the num-
ber of Americans who use social media is expected to grow. S. Dixon,
St atist a, Socia l Media Users i n the United St ates 2020 – 2029
(Jan. 30, 2024), https://www.statista.com/statistics/278409/number-of-
social-network-users-in-the-united-states.
2
V. Filak, Exploring Mass Communication: Connecting With the World
of Media 210 (2024).
3
Social Media and News Fact Sheet, Pew Research Center (Nov. 15,
2023), https://www.pewresearch.org/journalism/fact-sheet/social-media-
and-news-fact-sheet.
Page Proof Pending Publication

768 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
without social media is unimaginable.
4
Socia
l media may
provide many benefts—but not without drawbacks. For
example, some research suggests that social media are hav-
ing a devastating effect on many young people, leading to
depression, isolation, bullying, and intense pressure to en-
dorse the trend or cause of the day.
5
In light of these trends, platforms and governments have
implemented measures to minimize the harms unique to the
social-media context. Social-media companies have created
user guidelines establishing the kinds of content that users
may post and the consequences of violating those guidelines,
which often include removing nonconforming posts or re-
stricting noncompliant users' access to a platform.
Such enforcement decisions can sometimes have serious
consequences. Restricting access to social media can impair
users' ability to speak to, learn from, and do business with
others. Deleting the account of an elected offcial or candi-
date for public offce may seriously impair that individual's
efforts to reach constituents or voters, as well as the ability
of voters to make a fully informed electoral choice. And
what platforms call “content moderation” of the news or user
comments on public affairs can have a substantial effect on
popular views.
Concerned that social-media platforms could abuse their
enormous power, Florida and Texas enacted laws that pro-
hibit them from disfavoring particular viewpoints and speak-
ers. See S. B. 7072, 2021 Reg. Sess., § 1(9) (Fla.) (fnd-
ing that “[s]ocial media platforms have unfairly censored . . .
Floridians”); H. B. 20, 87th Leg., Called Sess. (Tex. 2021)
4
M. Anderson, M. Faverio, & J. Gottfried, Pew Research Center, Teens,
Socia l Media and Technolog y 2023 (Dec. 11, 2023), https://www.
pewresearch.org/ internet/2023/12/11/teens-social-media-and-technology-
2023.
5
Ibid.; see also J. Twenge, J. Haidt, J. Lozano, & K. Cummins, Specifca-
tion Curve Analysis Shows That Social Media Use Is Linked to Poor Men-
tal Health, Especially Among Girls, 224 Acta Psychologica 1, 8–12 (2022).
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
769
Alito, J., concurring in judgment
(prohibiting the “censorship of . . . expression on social media
platfor
ms” in Texas). Both statutes have a broad reach, and
it is impossible to determine whether they are unconstitu-
tional in all their applications without surveying those appli-
cations. The majority, however, provides only a cursory
outline of the relevant provisions of these laws and the litiga-
tion challenging their constitutionality. To remedy this de-
fciency, I will begin with a more complete summary.
A
1
I start with Florida's law, S. B. 7072, which regulates any
internet platform that does “business in the state” and has
either “annual gross revenues in excess of $100 million” or
“at least 100 million monthly individual platform participants
globally.” Fla. Stat. § 501.2041(1)(g) (2023). This defnition
is broad. There is no dispute that it covers large social-
networking websites like Facebook, X, YouTube, and Insta-
gram, but it may also reach e-commerce and other non-social-
networking websites that allow users to leave reviews, ask
and answer questions, or communicate with others online.
These may include Uber, Etsy, PayPal, Yelp, Wikipedia, and
Gmail. See, e. g., Tr. of Oral Arg. in No. 22–555, pp. 54–56,
69, 76–79, 155; Brief for Wikimedia Foundation as Amicus
Curiae 6; Brief for Yelp Inc. as Amicus Curiae 4, n. 4.
To prevent covered platfor ms from unfair ly treati ng
Flor idians, S. B. 7072 i mposes the fol low i ng “content-
moderation” and disclosure requirements:
Content-moderation provisions. “Content moderation”
is the gentle-sounding term used by internet platforms to
denote actions they take purportedly to ensure that user-
provided content complies with their terms of service and
“community standards.” The Florida law eschews this neol-
ogism and instead uses the old-fashioned term “censorship.”
To prevent platforms from discriminating against certain
views or speakers, that law requires each regulated platform
Page Proof Pending Publication

Page Proof Pending Publication
770 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
to enforce its “censorship . . . standards in a consistent man-
n
er among its users on the platfor m. ” Fla. St at.
§ 501.2041(2)(b). The law defnes “censorship” as any action
taken to: “delete, regulate, restrict, edit, alter, [or] inhibit”
users from posting their own content; “post an addendum to
any content or material posted by a user”; or “inhibit the
ability of a user to be viewable by or to interact with another
user.” § 501.2041(1)(b).
To prevent platforms from attempting to evade this re-
striction by regularly modifying their practices, the law
prohibits platforms from changing their censorship “rules,
terms, and agreements . . . more than once every 30 days.”
§ 501.2041(2)(c). And to give Floridians more control over
how they view content on social-media websites, the law re-
quires each platform to give its users the ability to “opt out”
of its content-sorting “algorithms” and instead view posts
sequentially or chronologically. § 501.2041(2)(f ).
6
Although some platforms still have employees who moni-
tor and organize social-media feeds, for most platforms, “the
incredible volume of content shared each day makes human
review of each new post impossible.” Brief for Developers
Alliance et al. as Amici Curiae 4. Consequently, platforms
rely heavily on algorithms to organize and censor content.
Ibid. And it is likely that they will increasingly rely on arti-
fcial intelligence (AI), a machine learning tool that arranges,
deletes, and modifes content and learns from its own choices.
In addition to barring censorship, the Florida law attempts
to prevent platforms from unfairly infuencing elections or dis-
torting public discourse. To do this, it requires platforms to
host candidates for public offce and journalistic enterprises.
7
6
As relevant here, an “algorithm” is a program that platforms use to auto-
matically “censor” or “moderate” content that violates their terms or condi-
tions, to organize the results of a search query, or to display posts in a feed.
7
A “journalistic enterprise” is defned as any entity doing business in
Florida that: (1) has published more than 100,000 words online and has at
least 50,000 paid subscribers or 100,000 monthly users; (2) has published

Cite
as: 603 U. S. 707 (2024)
771
Alito, J., concurring in judgment
§§ 501.2041(2)(h), ( j). For the same reasons, the law also pro-
h
ibits platforms from censoring posts made by or about can-
didates for public offce. § 501.2041(2)(h).
Disclosure provisions. S. B. 7072 requires platforms to
make both general and individual disclosures about how and
when they censor the speech of Floridians. The law re-
quires platforms to publish their content-moderation stand-
ards and to inform users of any changes. §§ 501.2041(2)(a),
(c). And whenever a platform censors a user, S. B. 7072 re-
quires it to: (1) notify the user of the censorship decision in
writing within seven days; (2) provide “a thorough” explana-
tion of the action and how the platform became aware of the
affected content; and (3) allow the user “to access or retrieve
all of the user's information, content, material, and data for
at least 60 days.” §§ 501.2041(2)(d), (i), (3).
To ensure compliance with these provisions, S. B. 7072 au-
thorizes the Florida attorney general to bring civil and
administrative actions against noncomplying platforms.
§ 501.2041(5). The law allows the Florida Elections Com-
mission to fne platforms that fail to host candidates for pub-
lic offce. Fla. Stat. § 106.072(3) (2023). And the law per-
mits aggrieved users to sue and recover up to $100,000 for
each violation of the content-moderation and disclosure pro-
visions, along with actual damages, equitable relief, punitive
damages, and attorney's fees. § 501.2041(6).
To protect platforms, the law provides that it “may only
be enforced to the extent not inconsistent with federal law,”
including § 230 of the Communications Decency Act of 1996.
§ 501.2041(9). Section 230(c)(2)(A) of that Act shields in-
ternet platforms from liability for voluntary, good-faith ef-
forts to restrict or remove content that is “obscene, lewd,
at least 100 hours of audio or video online and has at least 100 million
annual viewers; (3) operates a cable channel that produces more than 40
hours of content per week to at least 100,000 subscribers; or (4) operates
under a Federal Communications Commission broadcast license. Fla.
Stat. § 501.2041(1)(d).
Page Proof Pending Publication

772 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
lascivious, flthy, excessively violent, harassing, or otherwise
objec
tionable.” 47 U. S. C. § 230(c)(2)(A).
2
Days after S. B. 7072's enactment, NetChoice fled suit in
federal court, alleging that the new law violates the First
Amendment in all its applications.
8
As a result, NetChoice
asked the District Court to enter a preliminary injunction
against any enforcement of any of its provisions before the
law took effect.
Florida defended the constitutionality of S. B. 7072. It
argued that the law's prohibition of censorship does not vio-
late the freedom of speech because the First Amendment
permits the regulation of the conduct of entities that do not
express their own views but simply provide the means for
others to communicate. See Record in No. 4:21–CV–00220
(ND Fla.), Doc. 106, p. 22 (citing Rumsfeld v. Forum for Aca-
demic and Institutional Rights, Inc., 547 U. S. 47, 64 (2006)
(FAIR)). And, in any event, Florida argued that Net-
Choice's facial challenge was likely to fail at the threshold
because NetChoice had not identifed which of its members
were required to comply with the new law or how each of
its members' presentation of third-party speech expressed
that platform's own message. Record, Doc. 106, at 30, 58–
59; id., Doc. 118, pp. 5, 24–25. Without this information,
Florida said, it could not properly respond to NetChoice's
facial claim. Id., Doc. 122, pp. 4–5. Florida requested a
“meaningful opportunity to take discovery.” Tr. of Oral
Arg. in No. 22–277, p. 154. NetChoice objected. Record,
Doc. 122.
8
NetChoice also argued that S. B. 7072 is preempted by 47 U. S. C.
§ 230(c) and is unconstitutionally vague. Those arguments are not before
us because the District Court did not rule on the vagueness issue, 546
F. Supp. 3d 1082, 1095 (ND Fla. 2021), and the Eleventh Circuit declined
to reach the preemption issue, NetChoice v. Attorney Gen., Fla., 34 F. 4th
1196, 1209 (2022).
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
773
Alito, J., concurring in judgment
Despite these arguments, the District Court enjoined S. B.
7072
in its entirety before the law could go into effect. Flor-
ida appealed, maintaining, among other things, that Net-
Choice was “unlikely to prevail on the merits of [its] facial
First Amendment challenge.” Brief for Appellants in No.
21–12355 (CA11), p. 37; Reply Brief in No. 21–12355 (CA11),
p. 35.
With just one exception, the Eleventh Circuit affrmed.
It frst held that all the regulated platforms' decisions about
“whether, to what extent, and in what manner to dissemi-
nate third-party created content to the public” were constitu-
tionally protected expression. NetChoice v. Attorney Gen.,
Fla., 34 F. 4th 1196, 1212 (2022). Under that framing, the
court found that the moderation and individual-disclosure
provisions likely failed intermediate scrutiny, obviating the
need to determine whether strict scrutiny applied. Id., at
1227.
9
But the court held that the general-disclosure provi-
sions, which require only that platforms publish their censor-
ship policies, met the intermediate-scrutiny standard set
forth in Zauderer v. Offce of Disciplinary Counsel of Su-
preme Court of Ohio, 471 U. S. 626 (1985). 34 F. 4th, at 1230.
The Eleventh Circuit therefore vacated the portion of the
District Court's order that enjoined the enforcement of those
general-disclosure provisions, while affrming all the rest of
the injunction. Id., at 1231.
B
1
Around the same time as the enactment of the Florida law,
Texas adopted a similar measure, H. B. 20, which covers “so-
cial media platform[s]” with more than 50 million monthly
9
See also id., at 1214 (“unless posts and users are removed randomly,
those sorts of actions necessarily convey some sort of message—most ob-
viously, the platforms' disagreement with . . . certain content”); id., at 1223
(“S.B. 7072's disclosure provisions implicate the First Amendment”).
Page Proof Pending Publication

774 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
users in the United States. Tex. Bus. & Com. Code Ann.
§
120.002(b) (West 2023). The statute defnes a “ `[s]ocial
media platform' ” as an “[i]nternet website or application
that is open to the public, allows a user to create an account,
and enables users to communicate with other users for the
primary purpose of posting information, comments, mes-
sages, or images.” § 120.001(l). Unlike Florida's broader
law, however, Texas's statute does not cover internet-service
providers, email providers, and websites that “consis[t] pri-
marily of news, sports, entertainment, or other information
or content that is not user generated but is preselected by
the provider.” § 120.001(1)(C)(i).
To ensure “the free exchange of ideas and information,”
H. B. 20 requires regulated platforms to abide by the follow-
ing content-moderation and disclosure requirements. Act of
Sept. 2, 2021, 87th Leg., 2d Called Sess., ch. 3.
Content-moderation provisions. H. B. 20 prevents social-
media companies from “censoring ” users—that is, acting to
“block, ban, remove, deplatform, demonetize, de-boost, re-
strict, deny equal access or visibility to, or otherwise dis-
criminate against”—based on their viewpoint or geographic
location within Texas.
10,11,12
Tex. Civ. Prac. & Rem. Code
Ann. §§ 143A.001(1), 143A.002(a)(1)–(3) (West Cum. Supp.
10
In general, to “deplatform” means “to remove and ban a registered
user from a mass communication medium (such as a social networking or
blogging website).” Merriam-Webster's Collegiate Dictionary (10th ed.
2024), (defi ni ng “deplatfor m”; some punc tuati on omitted), https://
unabridged.merriam-webster.com/collegiate/deplatform (unless otherwise
noted, all internet sites last accessed May 22, 2024).
11
“[D]emonetization” often refers to the act of preventing “online con-
tent from earning revenue (as from advertisements).” Ibid. (defning “de-
monetize”; some punctuation omitted), https://unabridged.merriamwebster.
com/collegiate/demonetize.
12
“Boosting on social media means [paying] a platform to amplify . . .
posts for more reach.” C. Williams, HubSpot, Social Media Defnitions:
The Ultimate Glossary of Terms You Should Know (June 23, 2023), https://
blog.hubspot.com/marketing/social-media-terms. De-boosting thus usu-
ally refers to when platforms refuse to continue increasing a post's or
user's visibility to other users.
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
775
Alito, J., concurring in judgment
2023). However, the law allows platforms to censor speech
that:
federal law “specifcally authorize[s]” them to censor;
speech that the platform is told sexually exploits children or
survivors of sexual abuse; speech that “directly incites crimi-
nal activity or consists of specifc threats of violence targeted
against a person or group because of their race, color, disabil-
ity, religion, national origin or ancestry, age, sex or status as
a peace offcer or judge”; and speech that is otherwise unlaw-
ful or has been the subject of a user's request for removal
from his or her feed or profle. §§ 143A.006(a)–(b).
Disclosure provisions. Like the Florida law, H. B. 20 also
requires platforms to make general and individual disclo-
sures about their censorship practices. Specifcally, the law
obligates each platform to tell the public how it “targets,”
“promotes,” and “moderates” content. §§ 120.051(a)(1)–(3).
And whenever a platform censors a user, the law requires
it to inform the user why that was done. § 120.103(a)(1).
13
Platforms must allow users to appeal removal decisions
through “an easily accessible complaint system;” resolve
such appeals within 14 business days (unless an enumerated
exception applies); and, if the appeal is successful, provide
“ the reason for the reversal. ” §§ 120.101, 120.103(a)(2),
(a)(3)(B)–(b), 120.104.
Users may sue any platform that violates these provisions,
as may the Texas attorney general. § 143A.007(d). But un-
like the Florida law, H. B. 20 authorizes only injunctive re-
lief. §§ 143A.007(a), 143A.008. It contains a strong sever-
ability provision, § 8(a), which reaches “every provision,
section, subsection, sentence, clause, phrase, or word in th[e]
Act, and every application of [its] provisions.”
2
As it did in the Florida case, NetChoice sought a prelimi-
nary injunction in federal court, claiming that H. B. 20 vio-
13
Texas has represented that a brief computer-generated notifcation
to an affected user would satisfy the provision's notifcation requirement.
Brief for Respondent in No. 22–555, p. 44.
Page Proof Pending Publication

776 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
lates the First Amendment in its entirety. In response,
T
exas argued that because H. B. 20 regulates NetChoice's
members “in their operation as publicly accessible conduits
for the speech of others” rather than “as authors or editors”
of their own speech, NetChoice could not prevail. Record
in No. 1:21–CV–00840 (WD Tex.), Doc. 39, p. 23. But even
if the platforms might have the right to use algorithms to
censor their users' speech, the State argued, the question of
“what these algorithms are doing is a critical, and so far,
unexplained, aspect of this case.” Id., at 24. This def-
ciency mattered, Texas contended, because the platforms
could succeed on their facial challenge only by showing that
“all algorithms used by the Platforms are for the purposes of
expressing viewpoints of those Platforms.” Id., at 27. And
because NetChoice had not even explained what its mem-
bers' algorithms did, much less whether they did so in an
expressive way, Texas argued that NetChoice had not shown
that “all applications of H. B. 20 are unconstitutional.” Ibid.;
see also id., Doc. 53, at 13 (arguing that NetChoice had failed
to show that “H. B. 20 is . . . unconstitutional in all its applica-
tions” because “a number” of NetChoice's members had con-
ceded that the law did “not burden or chill their speech”).
To clarify these and other “threshold issues,” Texas moved
for expedited discovery. Id., Doc. 20, at 1. The District
Court granted Texas's motion in part, but after one month
of discovery, it sided with NetChoice and enjoined H. B. 20
in its entirety before it could go into effect. Texas appealed,
arguing that despite the District Court's judgment to the
contrary, “[l]aws requiring commercial entities to neutrally
host speakers generally do not even implicate the First
Amendment because they do not regulate the host's speech
at all—they regulate its conduct.” Brief for Appellant in
No. 21–51178 (CA5), p. 16. The State also emphasized Net-
Choice's alleged failure to show that H. B. 20 was unconstitu-
tional in even a “ `substantial number of its applications,' ”
the “bare minimum” showing that NetChoice needed to
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
777
Alito, J., concurring in judgment
make to prevail on its facial challenge. E. g., Reply Brief in
N
o. 21–51178 (CA5), p. 8 (quoting Americans for Prosperity
Foundation v. Bonta, 594 U. S. 595, 615 (2021)).
A divided Fifth Circuit panel reversed, focusing primarily
on NetChoice's failure to “even try to show that HB 20 is
`unconstitutional in all of its applications.' ” 49 F. 4th 439,
449 (2022) (quoting Washington State Grange v. Washington
State Republican Party, 552 U. S. 442, 449 (2008)). The
court also accepted Texas's argument that H. B. 20 “does not
regulate the Platforms' speech at all” because “the Platforms
are not `speaking ' when they host other people's speech.”
49 F. 4th, at 448. Finally, the court upheld the law's disclo-
sure requirements on the ground that they involve the disclo-
sure of the type of purely factual and uncontroversial infor-
mation that may be compelled under Zauderer. 49 F. 4th,
at 485.
II
NetChoice contends that the Florida and Texas statutes
facially violate the First Amendment, meaning that they can-
not be applied to anyone at any time under any circum-
stances without violating the Constitution. Such challenges
are strongly disfavored. See Washington State Grange, 552
U. S., at 452. They often raise the risk of “ `premature inter-
pretatio[n] of statutes' on the basis of factually barebones
records.” Sabri v. United States, 541 U. S. 600, 609 (2004).
They clash with the principle that courts should neither “ `an-
ticipate a question of constitutional law in advance of the
necessity of deciding it' ” nor “ `formulate a rule of constitu-
tional law broader than is required by the precise facts to
which it is to be applied.' ” Ashwander v. TVA, 297 U. S. 288,
346–347 (1936) (Brandeis, J., concurring). And they
“threaten to short circuit the democratic process by pre-
venting laws embodying the will of the people from being
implemented in a manner consistent with the Constitution.”
Washington State Grange, 552 U. S., at 451.
Page Proof Pending Publication

778 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
Facial challenges also strain the limits of the federal
cour
ts' constitutional authority to decide only actual “Cases”
and “Controversies.” Art. III, § 2. “[L]itigants typically
lack standing to assert the constitutional rights of third par-
ties.” United States v. Hansen, 599 U. S. 762, 769 (2023).
But when a court holds that a law cannot be enforced against
anyone under any circumstances, it effectively grants relief
with respect to unknown parties in disputes that have not
yet materialized.
For these reasons, we have insisted that parties mounting
facial attacks satisfy demanding requirements. In United
States v. Salerno, 481 U. S. 739, 745 (1987), we held that a
facial challenger must “establish that no set of circumstances
exists under which the [law] would be valid.” “While some
Members of the Court have criticized the Salerno formula-
tion,” all have agreed “that a facial challenge must fail where
the statute has a ` “plainly legitimate sweep.” ' ” Washing-
ton State Grange, 552 U. S., at 449. In First Amendment
cases, we have sometimes phrased the requirement as an ob-
ligation to show that a law “ `prohibits a substantial amount
of protected speech' ” relative to its “ `plainly legitimate
sweep.' ” Hansen, 599 U. S., at 770; Bonta, 594 U. S., at 615;
United States v. Williams, 553 U. S. 285, 292–293 (2008).
14
NetChoice and the Federal Government urge us not to
apply any of these demanding tests because, they say, the
States disputed only the “threshold question” whether their
14
At oral argument, NetChoice represented that “it's the plainly legiti-
mate sweep test, which is not synonymous with overbreadth,” that gov-
erns these cases. See Tr. of Oral Arg. in No. 22–277, p. 70; contra, ante,
at 723 (suggesting that the overbreadth doctrine applies to all facial chal-
lenges brought under the First Amendment, including these cases). This
representation makes sense given that the overbreadth doctrine applies
only when there is “a realistic danger that the statute itself will signif-
cantly compromise recognized First Amendment protections of parties not
before the Court.” Members of City Council of Los Angeles v. Taxpayers
for Vincent, 466 U. S. 789, 801 (1984). And here, NetChoice appears to
represent all—or nearly all—regulated parties.
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 603 U. S. 707 (2024)
779
Alito, J., concurring in judgment
laws “cover expressive activity at all.” Tr. of Oral Arg. in
N
o. 22–277, at 76; see also id., at 84, 125; Tr. of Oral Arg.
in No. 22–555, at 92. The Court unanimously rejects that
argument—and for good reason.
First, the States did not “put all their eggs in [one] bas-
ket.” Tr. of Oral Arg. in No. 22–277, at 76. To be sure,
they argued that their newly enacted laws were valid in all
their applications. Ibid. Both the Federal Government
and the States almost always defend the constitutionality of
all provisions of their laws. But Florida and Texas did not
stop there. Rather, as noted above, they went on to argue
that NetChoice had failed to make the showing required for
a facial challenge.
15
Therefore, the record does not support
NetChoice's attempt to use “the party presentation rules”
as grounds for blocking our consideration of the question
whether it satisfed the facial constitutionality test. Tr. of
Oral Arg. in No. 22–555, at 92.
Second, even if the States had not asked the lower courts
to reject NetChoice's request for blanket relief, it would have
been improper for those courts to enjoin all applications of
the challenged laws unless that test was met. “It is one
thing to allow parties to forfeit claims, defenses, or lines of
argument; it would be quite another to allow parties to stipu-
15
See Reply Brief in No. 21–12355 (CA11), p. 35 (“Plaintiffs—in their
facial challenge—have failed to demonstrate that even a signifcant subset
of covered social media platforms engages in [expressive] conduct.” See
also Brief for Appellants in No. 21–12355 (CA11), p. 37 (NetChoice is “un-
likely to prevail on the merits of [its] facial First Amendment challenge”);
Record in No. 4:21–CV–00220 (ND Fla.), Doc. 106, p. 30 (“Plaintiffs have
not demonstrated that their members actually [express a message],” so
there is “not a basis for sustaining Plaintiffs' facial constitutional chal-
lenge”); Reply Brief in No. 21–51178 (CA5), p. 14 (arguing that NetChoice
failed “to show at a bare minimum that [S. B. 20] is unconstitutional in a
`substantial number of its applications' ” (quoting Americans for Prosper-
ity Foundation v. Bonta, 594 U. S. 595, 615 (2021))); Record in No. 1:21–
CV–00840 (WD Tex.), Doc. 39, p. 27 (because “not all applications of H.B.
20 are unconstitutional,” “Plaintiffs' delayed facial challenge [can]not
succeed”).

780 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
late or bind [a court] to [the] application of an incorrect legal
st
andard.” Gardner v. Galetka, 568 F. 3d 862, 879 (CA10
2009); see also Kairys v. Southern Pines Trucking, Inc., 75
F. 4th 153, 160 (CA3 2023) (“But parties cannot forfeit the
application of `controlling law' ”); United States v. Escobar,
866 F. 3d 333, 339, n. 13 (CA5 2017) (per curiam) (“ `A party
cannot waive, concede, or abandon the applicable standard of
review' ” (quoting Ward v. Stephens, 777 F. 3d 250, 257, n. 3
(CA5 2015))).
Represented by sophisticated counsel, NetChoice made
the deliberate choice to mount a facial challenge to both laws,
and in doing so, it obviously knew what it would have to
show in order to prevail. NetChoice decided to fght these
laws on these terms, and the Court properly holds it to
that decision.
III
I therefore turn to the question whether NetChoice estab-
lished facial unconstitutionality, and I begin with the States'
content-moderation requirements. To show that these pro-
visions are facially invalid, NetChoice had to demonstrate
that they lack a plainly legitimate sweep under the First
Amendment. Our precedents interpreting that Amendment
provide the numerator (the number of unconstitutional appli-
cations) and denominator (the total number of possible appli-
cations) that NetChoice was required to identify in order to
make that showing. Estimating the numerator requires an
understanding of the First Amendment principles that must
be applied here, and I therefore provide a brief review of
those principles.
A
The First Amendment protects “the freedom of speech,”
and most of our cases interpreting this right have involved
government efforts to forbid, restrict, or compel a party's
own oral or written expression. Agency for Int'l Develop-
ment v. Alliance for Open Society Int'l, Inc., 570 U. S. 205,
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
781
Alito, J., concurring in judgment
213 (2013); Wooley v. Maynard, 430 U. S. 705, 714 (1977);
W
est Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642
(1943). Some cases, however, have involved another aspect
of the free speech right, namely, the right to “presen[t] . . .
an edited compilation of speech generated by other persons”
for the purpose of expressing a particular message. See
Hurl ey v. Ir ish-Ame r i can Gay, Lesb i an and Bisexu al
Group of Boston, Inc., 515 U. S. 557, 570 (1995). As used in
this context, the term “compilation” means any effort to
present the expression of others in some sort of organized
package. See ibid.
An example such as the famous Oxford Book of English
Poetry illustrates why a compilation may constitute expres-
sion on the part of the compiler. The editors' selection of
the poems included in this volume expresses their view about
the poets and poems that most deserve the attention of their
anticipated readers. Forcing the editors to exclude or in-
clude a poem could alter the expression that the editors wish
to convey.
Not all compilations, however, have this expressive charac-
teristic. Suppose that the head of a neighborhood group
prepares a directory consisting of contact information sub-
mitted by all the residents who want to be listed. This di-
rectory would not include any meaningful expression on the
part of the compiler.
Because not all compilers express a message of their own,
not all compilations are protected by the First Amendment.
Instead, the First Amendment protects only those compila-
tions that are “inherently expressive” in their own right,
meaning that they select and present speech created by
other persons in order “to spread [the compiler's] own mes-
sage.” FAIR, 547 U. S., at 66; Pacifc Gas & Elec. Co. v.
Public Util. Comm'n of Cal., 475 U. S. 1, 10 (1986) (PG&E)
(plurality opinion). If a compilation is inherently expres-
sive, then the compiler may have the right to refuse to ac-
commodate a particular speaker or message. See Hurley,
Page Proof Pending Publication

Page Proof Pending Publication
782 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
515 U. S., at 573. But if a compilation is not inherently ex-
pressive
, then the government can require the compiler to
host a message or speaker because the accommodation does
not amount to compelled speech. Id., at 578–581.
To show that a hosting requirement would compel speech
and thereby trigger First Amendment scrutiny, a claimant
must generally show three things.
1
First, a claimant must establish that its practice is to exer-
cise “editorial discretion in the selection and presentation”
of the content it hosts. Arkansas Ed. Television Comm'n
v. Forbes, 523 U. S. 666, 674 (1998); Hurley, 515 U. S., at 574;
ante, at 728. NetChoice describes this process as content
“curation.” But whatever you call it, not all compilers do
this, at least in a way that is inherently expressive. Some
may serve as “passive receptacle[s]” of third-party speech or
as “dumb pipes”
16
that merely emit what they are fed. Such
entities communicate no message of their own, and accord-
ingly, their conduct does not merit First Amendment protec-
tion.
17
Miami Herald Publishing Co. v. Tornillo, 418 U. S.
241, 258 (1974).
Determining whether an entity should be viewed as a “cu-
rator” or a “dumb pipe” may not always be easy because
16
American Broadcasting Cos. v. Aereo, Inc., 573 U. S. 431, 458 (2014)
(Scalia, J., dissenting).
17
The majority states that it is irrelevant whether “a compiler includes
most items and excludes just a few.” Ante, at 732. That may be true if
the compiler carefully reviews, edits, and selects a large proportion of the
items it receives. But if an entity, like some “sort of community billboard,
regularly carr[ies] the messages of third parties” instead of selecting only
those that contribute to a common theme, then this information becomes
highly relevant. PG&E, 475 U. S. 1, 23 (1986) (Marshall, J., concurring in
judgment). Entities that have assumed the role of common carriers fall
into this category, for example. And the States defend portions of their
laws on the ground that at least some social-media platforms have taken
on that role. The majority brushes aside that argument without ade-
quate consideration.

Cite
as: 603 U. S. 707 (2024)
783
Alito, J., concurring in judgment
different aspects of an entity's operations may take different
approaches
with respect to hosting third-party speech. The
typical newspaper regulates the content and presentation of
articles authored by its employees or others, PG&E, 475
U. S., at 8, but that same paper might also run nearly all the
classifed advertisements it receives, regardless of their
content and w ithout addi ng any expressi on of its own.
Compare Tornillo, 418 U. S. 241, with Pittsburgh Press Co.
v. Pittsburgh Comm'n on Human Relations, 413 U. S.
376 (1973). These differences may be significant for First
Amendment purposes.
The same may be true for a parade organizer. For exam-
ple, the practice of a parade organizer may be to select the
groups that are admitted, but not the individuals who are
allowed to march as members of admitted groups. Hurley,
515 U. S., at 572–574. In such a case, each of these practices
would have to be analyzed separately.
2
Second, the host must use the compilation of speech to
express “some sort of collective point”—even if only at a
fairly abstract level. Id., at 568. Thus, a parade organizer
who claims a First Amendment right to exclude certain
groups or individuals would need to show at least that the
message conveyed by the groups or individuals who are al-
lowed to march comports with the parade's theme. Id., at
560, 574. A parade comprising “unrelated segments” that
lumber along together willy-nilly would likely not express
anything at all. Id., at 576. And although “a narrow, suc-
cinctly articulable message is not a condition of constitutional
protection,” compilations that organize the speech of others
in a non-expressive way (e. g., chronologically) fall “beyond the
realm of expressi[on].” Id., at 569; contra, ante, at 731–732.
Our decision in PruneYard illustrates this point. In that
case, the Court held that a mall could be required to host
third-party speech (i. e., to admit individuals who wanted to
Page Proof Pending Publication

784 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
distribute handbills or solicit signatures on petitions) be-
cause
the mall's admission policy did not express any mes-
sage, and because the mall was “open to the public at large.”
PruneYard Shopping Center v. Robins, 447 U. S. 74, 83, 87–
88 (1980); 303 Creative LLC v. Elenis, 600 U. S. 570, 590
(2023). In such circumstances, we held that the First
Amendment is not implicated merely because a host objects
to a particular message or viewpoint. See PG&E, 475 U. S.,
at 12.
3
Finally, a compiler must show that its “own message [is]
affec ted by the speech it [is] forced to accommodate. ”
FAIR, 547 U. S., at 63. In core examples of expressive com-
pilations, such as a book containing selected articles, chap-
ters, stories, or poems, this requirement is easily satisfed.
But in other situations, it may be hard to identify any mes-
sage that would be affected by the inclusion of particular
third-party speech.
Two precedents that the majority tries to downplay, if
not forget, are illustrative. The frst is PruneYard, which
I have already discussed. The PruneYard Court rejected
the mall's First Amendment claim because “[t]he views ex-
pressed by members of the public in passing out pamphlets
or seeking signatures for a petition [were] not likely [to] be
identifed with those of the owner.” 447 U. S., at 87. And
if those who perused the handbills or petitions were not
likely to make that connection, any message that the mall
owner intended to convey would not be affected.
The decision in FAIR rested on similar reasoning. In that
case, the Court did not dispute the proposition that the law
schools' refusal to host military recruiters expressed the
message that the military should admit and retain gays and
lesbians. But the Court found no First Amendment viola-
tion because, as in PruneYard, it was unlikely that the views
of the military recruiters “would be identifed with” those of
the schools themselves, and consequently, hosting the mili-
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 603 U. S. 707 (2024)
785
Alito, J., concurring in judgment
tary recruiters did not “suffciently interfere with any mes-
sage
of the school.” 547 U. S., at 64–65; contra, ante, at 739
(“[T]his Court has never hinged a compiler's First Amend-
ment protection on the risk of misattribution.”).
18
B
A party that challenges government interference with its
curation of content cannot win without making the three-
part showing just outlined, but such a showing does not
guarantee victory. To prevail, the party must go on and
show that the challenged regulation of its curation practices
violates the applicable level of First Amendment scrutiny.
Our decision in Turner makes that clear. Although the
television cable operators in that case made the showing
needed to trigger First Amendment scrutiny, they did not
ultimately prevail on their facial challenge to the Cable Act.
After a remand and more than 18 months of additional fac-
tual development, the Court held that the law was ade-
quately tailored to serve legitimate and important gov-
ernment interests, including “promoting the widespread
dissemination of information from a multiplicity of sources.”
Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 189
(1997). Here, the States assert a similar interest in foster-
ing a free and open marketplace of ideas.
19
18
To be sure, in Turner Broadcasting System, Inc. v. FCC, 512 U. S.
622, 655 (1994), we held that the First Amendment applied even though
there was “little risk” of misattribution in that case. But that is only
because the claimants in that case had already shown that the Cable Act
affected the quantity or reach of the messages that they communicated
through “original programming ” or television programs produced by oth-
ers. Id., at 636 (internal quotation marks omitted). In cases not involv-
ing core examples of expressive compilations, such as in PruneYard and
FAIR, a compiler's First Amendment protection has very much turned on
the risk of misattribution.
19
Contrary to the majority's suggestion, ante, at 740–741, this is not the
only interest that Texas asserted. Texas has also invoked its interest in
preventing platforms from discriminating against speakers who reside in
Texas or engage in certain forms of off-platform speech. Brief for Re-

786 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
C
W
ith these standards in mind, I proceed to the question
whether the content-moderation provisions are facially valid.
For the following three reasons, NetChoice failed to meet
its burden.
1
First, NetChoice did not establish which entities the stat-
utes cover. This failure is critical because it is “impossible
to determine whether a statute reaches too far without frst
knowing what the statute covers.” Williams, 553 U. S., at
293. When it sued Florida, NetChoice was reluctant to dis-
close which of its members were covered by S. B. 7072. In-
stead, it fled declarations revealing only that the law
reached “Etsy, Facebook, and YouTube.” Tr. of Oral Arg.
in No. 22–277, at 32. In this Court, NetChoice was a bit
more forthcoming, representing that S. B. 7072 also covers
Instagram, X, Pinterest, Reddit, Gmail, Uber, and other e-
commerce websites. Id., at 69, 76; Brief for Respondents in
No. 22–277, at 7, 38, 49.
20
But NetChoice has still not pro-
vided a complete list.
NetChoice was similarly reluctant to identify its affected
members in the Texas case. At frst, NetChoice “repre-
sented . . . that only Facebook, YouTube, and [X] are affected
by the Texas law.” Brief for Appellant in No. 21–51178
(CA5), at 12, n. 1. But in its brief in this Court, NetChoice
told us that H. B. 20 also regulates “some of the Internet's
most popular websites, including Facebook, Instagram, Pint-
spondent in No. 22–555, at 15. The majority opinion does not mention
these features, much less the interests that Texas claims they serve.
Texas also asserts an interest in preventing common carriers from engag-
ing in “ `invidious discrimination in the distribution of publicly available
goods, services, and other advantages.' ” Id., at 18. These are “compel-
ling state interests of the highest order” too. Roberts v. United States
Jaycees, 468 U. S. 609, 624 (1984).
20
This concession suggests that S. B. 7072 may “cover websites that
engage in primarily non-expressive conduct.” Tr. of Oral Arg. in No. 22–
277, at 34.
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
787
Alito, J., concurring in judgment
erest, TikTok, Vimeo, X (formerly known as Twitter), and
Y
ouTube.” Brief for Petitioners in No. 22–555, p. 1. And
websites such as D iscord,
2 1
Reddit,
2 2
Wik ipedia,
2 3
and
Yelp
24
have fled amicus briefs claiming that they may be
covered by both the Texas and Florida laws.
It is a mystery how NetChoice could expect to prevail on
a facial challenge without candidly disclosing the platforms
that it thinks the challenged laws reach or the nature of
the content moderation they practice. Without such infor-
mation, we have no way of knowing whether the laws at
issue here “cover websites that engage in primarily non-
expressive conduct.” Tr. of Oral Arg. in No. 22–277, at 34; see
also id., at 126. For example, among other things, NetChoice
has not stated whether the challenged laws reach websites like
WhatsApp
25
and Gmail,
26
which carry messages instead of
curating them to create an independent speech product.
Both laws also appear to cover Reddit
27
and BeReal,
28
and
21
Brief for Discord Inc. as Amicus Curiae 2, 21–27. “Discord is a real
time messaging service with over 150 million active monthly users who
communicate within a huge variety of interest-based communities, or
`servers.' ” Id., at 1.
22
Brief for Reddit, Inc., as Amicus Curiae 2. Reddit is an online forum
that allows its “users to establish and enforce their own rules governing
what topics are acceptable and how those topics may be discussed . . . .
The display of content on Reddit is thus primarily driven by humans—not
by centralized algorithms.” Ibid.
23
Brief for Wikimedia Foundation as Amicus Curiae 2.
24
Brief for Yelp Inc. as Amicus Curiae 3–4.
25
About WhatsApp, WhatsApp, https://whatsapp.com/about ( last ac-
cessed Apr. 23, 2024).
26
Secure, Smart, and Easy To Use Email, Gmail, https://google.com/
gmail/about (last accessed Apr. 23, 2024).
27
Reddit Content Policy, Reddit, https://www.redditinc.com/policies/
content-policy (last accessed Apr. 23, 2024) (describing Reddit as a plat-
form that is run and moderated by its users).
28
BeReal, which appears to have enough monthly users to be covered
by the Texas law, allows users to share a photo with their friends once
during a randomly selected 2-minute window each day. Time To BeReal,
https:// help.bereal.com/ hc/en-us/articles/7350386715165-Time-to-BeReal
(last accessed Apr. 23, 2024). Twenty-four hours later, those photos dis-
Page Proof Pending Publication

788 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
websites like Parler,
29
wh
ich claim to engage in little or no
content moderation at all. And Florida's law, which is even
broader than Texas's, plainly applies to e-commerce plat-
forms like Etsy that make clear in their terms of service that
they are “not a curated marketplace.”
30
In First Amendment terms, this means that these laws—
in at least some of their applications—appear to regulate the
kind of “passive receptacle[s]” of third-party speech that re-
ceive no First Amendment protection. Tornillo, 418 U. S.,
at 258. Given such uncertainty, it is impossible for us to
determine whether these laws have a “plainly legitimate
sweep.” Williams, 553 U. S., at 292; Washington State
Grange, 552 U. S., at 449.
2
Second, NetChoice has not established what kinds of con-
tent appear on all the regulated platforms, and we cannot
determine whether these platforms create an “inherently ex-
pressive” compilation of third-party speech until we know
what is being compiled.
We know that social-media platforms generally allow their
users to create accounts; send direct messages through
pr ivate i nboxes; post wr itten messages, photos, and
videos; and comment on, repost, or otherwise interact with
other users' posts. And NetChoice acknowledges in fairly
general terms that its members engage in most—though
appear. Because BeReal posts thus appear and disappear “randomly,”
even the Eleventh Circuit would agree that BeReal likely is not an expres-
sive compilation. 34 F. 4th, at 1214.
29
Community Guidelines, Parler, https://www.parler.com/community-
guidelines (May 31, 2024) (“We honor the ability of all users to freely ex-
press themselves without interference from oppressive censorship or
manipulation”). Parler probably does not have a suffcient number of
monthly users to be covered by these statutes. But it is possible that
other covered websites use a similar business model.
30
Our House Rules, Etsy, https://etsy.com/ legal/prohibited (last accessed
Apr. 23, 2024).
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
789
Alito, J., concurring in judgment
not a l l—of these func ti ons. But such genera l ities are
i
nsuffcient.
For one thing, the ways in which users post, send direct
messages, or interact with content may differ in meaningful
ways from platform to platform. And NetChoice's failure to
account for these differences may be decisive. To see how,
consider X and Yelp. Both platforms allow users to post
comments and photos, but they differ in other respects.
31
X
permits users to post (or “Tweet”) on a broad range of topics
because its “purpose is to serve the public conversation,”
32
and as a result, many elected offcials use X to communicate
with constituents. Yelp, by contrast, allows users to post
comments and pictures only for the purpose of advertising
local businesses or providing “frsthand accounts” that re-
fect their “consumer experience” with businesses.
33
It does
not permit “rants about political ideologies, a business's em-
ployment practices, extraordinary circumstances, or other
matters that don't address the core of the consumer
experience.”
34
As this example shows, X's content is more political than
Yelp's, and Yelp's content is more commercial than X's.
That difference may be signifcant for First Amendment pur-
poses. See Pittsburgh Press, 413 U. S. 376. But NetChoice
has not developed the record on that front. Nor has it
shown what kinds of content appear across the diverse array
of regulated platforms.
Social-media platforms are diverse, and each may be
unique in potentially signifcant ways. On the present rec-
ord, we are ill-equipped to account for the many platform-
31
Yelp and X are both covered by S. B. 7072 and H. B. 20. See Brief
for Yelp Inc. as Amicus Curiae 4, n. 4.
32
The X Rules, X, https://help.x.com/en/rules-and-policies/x-rules (last
accessed Apr. 23, 2024).
33
Content Guidelines, Yelp, https://www.yelp.com/guidelines (last ac-
cessed Apr. 23, 2024).
34
Ibid.
Page Proof Pending Publication

790 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
specifc features that allow users to do things like sell or
purchase
goods,
35
live-stream events,
36
request a ride,
37
ar-
range a date,
38
create a discussion forum,
39
wire money to
friends,
40
play a video game,
41
hire an employee,
42
log a run,
43
or agree to watch a dog.
44
The challenged laws may apply
differently to these different functions, which may present
different First Amendment issues. A court cannot invali-
date the challenged laws if it has to speculate about their
applications.
3
Third, NetChoice has not established how websites moder-
ate content. NetChoice alleges that “[c]overed websites”
generally use algorithms to organize and censor content ap-
pearing in “search results, comments, or in feeds.” Brief for
Petitioners in No. 22–555, at 4, 6. But at this stage and on
this record, we have no way of confrming whether all of the
regulated platforms use algorithms to organize all of their
content, much less whether these algorithms are expressive.
See Hurley, 515 U. S., at 568. Facebook and Reddit, for in-
stance, both allow their users to post about a wide range of
topics.
45
But while Facebook uses algorithms to arrange
35
E. g., Facebook Marketplace, Etsy.
36
E. g., X Live, Twitch.
37
E. g., Uber, Lyft.
38
E. g., Facebook Dating, Tinder.
39
E. g., Reddit, Quora.
40
E. g., Meta Pay, Venmo, PayPal.
41
E. g., Metaverse, Discord.
42
E. g., Indeed, LinkedIn.
43
E. g., Strava.
44
E. g., Rover.
45
Community Standards, Facebook, https:// transparency.meta.com/
policies/community-standards (“[Facebook] wants people to be able to talk
openly about the issues that matter to them, whether through written
comments, photos, music, or other artistic mediums”); Brief for Reddit,
Inc., as Amicus Curiae 12 (“[T]he Reddit platform as a whole accommo-
dates a wide range of communities and modes of discourse”).
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
791
Alito, J., concurring in judgment
and moderate its users' posts, Reddit asserts that its content
is
moderated by Reddit users, “not by centralized algo-
rithms.” Brief for Reddit, Inc., as Amicus Curiae 2. If
Reddit and other platforms entirely outsource curation to
others, they can hardly claim that their compilations express
their own views.
Perhaps recognizing this, NetChoice argues in passing
that it cannot tell us how its members moderate content be-
cause doing so would embolden “malicious actors” and di-
vulge “proprietary and closely held” information. E. g.,
Brief for Petitioners in No. 22–555, at 11. But these harms
are far from inevitable. Various platforms already make
similar disclosures—both voluntarily and to comply with the
European Union's Digital Services Act
46
—yet the sky has
not fallen. And on remand, NetChoice will have the oppor-
tunity to contest whether particular disclosures are neces-
sary and whether any relevant materials should be fled
under seal.
Various NetChoice members already disclose in broad
strokes how they use algorithms to curate content. Many
platforms claim to use algorithms to identify and remove vio-
lent, obscene, sexually explicit, and false posts that violate
their community guidelines. Brief for Developers Alliance
et al. as Amici Curiae 11. Some platforms—like X, for in-
stance—say they use algorithms, not for the purpose of re-
moving all nonconforming speech, but to “promot[e] counter-
speech” that “presents facts to correct misstatements” or
46
Comm'n Reg. 2022/2065, Art. 17, 2022 O. J. (L. 277) 51–52. NetChoice
does not dispute the States' assertion that the regulated platforms are
required to comply with this law. Compare Brief for Petitioners in No.
22–277, p. 49, with Reply Brief in No. 22–277, p. 24; Tr. of Oral Arg. in No.
22–555, pp. 20–21. If, on remand, the States show that the platforms
have been able to comply with this law in Europe without having to forgo
“exercising editorial discretion at all,” Brief for Respondents in No. 22–
277, p. 40, then that might help them prove that their disclosure laws are
not “unduly burdensome” under Zauderer v. Offce of Disciplinary Coun-
sel of Supreme Court of Ohio, 471 U. S. 626 (1985).
Page Proof Pending Publication

792 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
“denounces hateful or dangerous speech.”
47
Sti
ll others,
like Parler,
48
Reddit,
49
and Signal Messenger,
50
say they en-
gage in little or no content moderation.
Some platforms have also disclosed that they use algo-
rithms to help their users fnd relevant content. The e-
commerce platform Etsy, for instance, uses an algorithm that
matches a user's search terms to the “attributes” that a
seller ascribes to its wares.
51
Etsy's algorithm also accounts
for things like the date of the seller's listing, the proximity of
the seller and buyer, and the quality of the seller's customer-
service ratings. Ibid.
YouTube says it answers search queries based on “rele-
vance, engagement and quality”—taking into account how
well a search query matches a video title, the kinds of videos
a particular user viewed in the past, and each creator's “ex-
pertise, authoritativeness, and trustworthiness on a given
topic.”
52
These disclosures suggest that platforms can say some-
thing about their content-moderation practices without en-
abling malicious actors or disclosing proprietary information.
They also suggest that not all platforms curate all third-
party content in an inherently expressive way. Without
more information about how regulated platforms moderate
47
Our Approach to Policy Development and Enforcement Philosophy, X,
http://www.help.x.com/en/rules-and-policies/enforcement-philosophy.
48
Community Guidelines, Parler, https://www.parler.com/community-
guidelines.
49
Reddit Content Policy, Reddit, https://www.redditinc.com/policies/
content-policy.
50
Signal Terms & Privacy Policy, Signal Messenger (May 25, 2018),
https://www.signal.org/ legal.
51
How Etsy Search Works, Etsy Help Center, https://help.etsy.com/hc/en-
us/articles/115015745428-How-Etsy-Search-Works?segment=selling (vis-
ited Apr. 9, 2024).
52
YouTube Search, https://www.youtube.com/ howyoutubeworks/
product-features/search (last accessed Apr. 23, 2024). Unlike many other
platforms, YouTube does not accept payment for better placement within
organic search.
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
793
Alito, J., concurring in judgment
content, it is not possible to determine whether these laws
lack
“a ` “plainly legitimate sweep.” ' ” Washington State
Grange, 552 U. S., at 449.
For a l l these reasons, NetChoice fai led to est abl ish
whether the content-moderation provisions violate the First
Amendment on their face.
D
Although the only question the Court must decide today
is whether NetChoice showed that the Florida and Texas
laws are facially unconstitutional, much of the majority opin-
ion addresses a different question: whether the Texas law's
content-moderation provisions are constitutional as applied
to two features of two platforms—Facebook's News Feed
and YouTube's homepage. The opinion justifes this discus-
sion on the ground that the Fifth Circuit cannot apply the
facial constitutionality test without resolving that question,
see, e. g., ante, at 727, 744, but that is not necessarily true.
Especially in light of the wide reach of the Texas law, Net-
Choice may still fall far short of establishing facial unconsti-
tutionality—even if it is assumed for the sake of argument
that the Texas law is unconstitutional as applied to Face-
book's News Feed and YouTube's homepage.
53
For this reason, the majority's “guidance” on this issue
may well be superfuous. Yet superfuity is not its most
egreg ious flaw. The majority's discussion also rests on
wholly conclusory assumptions that lack record support.
For example, the majority paints an attractive, though sim-
plistic, picture of what Facebook's News Feed and YouTube's
homepage do behind the scenes. Taking NetChoice at its
word, the majority says that the platforms' use of algorithms
to enforce their community standards is per se expressive.
But the platforms have refused to disclose how these algo-
rithms were created and how they actually work. And the
53
This problem is even more pronounced for the Florida law, which cov-
ers more platforms and conduct than the Texas law.
Page Proof Pending Publication

794 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
majority fails to give any serious consideration to key argu-
ments
pressed by the States. Most notable is the majority's
conspicuous failure to address the States' contention that
platforms like YouTube and Facebook—which constitute the
21st century equivalent of the old “public square”—should
be viewed as common carriers. See Biden v. Knight First
Amendment Institute at Columbia University, 593 U. S.
901, 905–907 (2021) (Thomas, J., concurring). Whether or
not the Court ultimately accepts that argument, it deserves
serious treatment.
Instead of seriously engaging with this and other argu-
ments, the majority rests on NetChoice's dubious assertion
that there is no constitutionally signifcant difference be-
tween what newspaper editors did more than a half-century
ago at the time of Tornillo and what Facebook and YouTube
do today.
Maybe that is right—but maybe it is not. Before mechan-
ica lly accepting th is analog y, perhaps we should take a
closer look.
Let's start with size. Currently, Facebook and YouTube
each produced—on a daily basis—more than four petabytes
(4,000,000,000,000,000 bytes) of data.
54
By my calculation,
that is roughly 1.3 billion times as many bytes as there are
in an issue of the New York Times.
55
No human being could possibly review even a tiny fraction
of this gigantic outpouring of speech, and it is therefore hard
to see how any shared message could be discerned. And
even if someone could view all this data and fnd such a mes-
54
Breaking Down the Numbers: How Much Data Does the World Create
Daily in 2024? Edge Delta (Mar. 11, 2024), https://www.edgedelta.com/
company/ blog/how-much-data-is-created-per-day.
55
The average issue of the New York Times, excluding ads, contains
about 150,000 words. A typical word consists of 10 to 20 bytes. There-
fore, the average issue of the New York Times contains around 3 million
bytes.
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 603 U. S. 707 (2024)
795
Alito, J., concurring in judgment
sage, how likely is it that the addition of a small amount of
discordant
speech would change the overall message?
Now consider how newspapers and social-media platforms
edit content. Newspaper editors are real human beings, and
when the Court decided Tornillo (the case that the majority
fnds most instructive), editors assigned articles to particular
reporters, and copyeditors went over typescript with a blue
pencil. The platforms, by contrast, play no role in selecting
the billions of texts and videos that users try to convey to
each other. And the vast bulk of the “curation” and “con-
tent moderation” carried out by platforms is not done by
human beings. Instead, algorithms remove a small fraction
of nonconforming posts post hoc and prioritize content based
on factors that the platforms have not revealed and may not
even know. After all, many of the biggest platforms are be-
ginning to use AI algorithms to help them moderate content.
And when AI algorithms make a decision, “even the re-
searchers and programmers creating them don't really un-
derstand why the models they have built make the decisions
they make.”
56
Are such decisions equally expressive as
the decisions made by humans? Should we at least think
about this?
Other questions abound. Maybe we should think about
the enormous power exercised by platforms like Facebook
and YouTube as a result of “network effects.” Cf. Ohio v.
American Express Co., 585 U. S. 529 (2018). And maybe we
should think about the unique ways in which social-media
platforms infuence public thought. To be sure, I do not sug-
gest that we should decide at this time whether the Florida
and Texas laws are constitutional as applied to Facebook's
News Feed or YouTube's homepage. My argument is just
the opposite. Such questions should be resolved in the con-
56
T. Xu, AI Makes Decisions We Don't Understand—That's a Problem,
(Ju ly 19, 2021), https:// bui lti n.com/ar ti ficia l-i ntel ligence/ai-r ight-
explanation.

796 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
text of an as-applied challenge. But no as-applied question
is
before us, and we do not have all the facts that we need
to tackle the extraneous matters reached by the majority.
Instead, when confronted with the application of a con-
stitutional requirement to new technology, we should pro-
ceed with caution. While the meaning of the Constitution
remains constant, the application of enduring principles
to new technology requires an understanding of that tech-
nology and its effects. Premature resolution of such ques-
tions creates the risk of decisions that will quickly turn
into embarrassments.
IV
Just as NetChoice failed to make the showing necessary
to demonstrate that the States' content-moderation provi-
sions are facially unconstitutional, NetChoice's facial attacks
on the i ndiv idua l-disclosure prov isi ons a lso fel l shor t.
Those provisions require platforms to explain to affected
users the basis of each content-censorship decision. Be-
cause these regulations provide for the disclosure of “purely
factual and uncontroversial information,” they must be re-
viewed under Zauderer's framework, which requires only
that such laws be “reasonably related to the State's interest
in preventing deception of consumers” and not “unduly bur-
de[n]” speech. 471 U. S., at 651.
57
For Zauderer purposes, a law is “unduly burdensome” if
it threatens to “chil[l] protected commercial speech.” Ibid.
Here, NetChoice claims that these disclosures have that ef-
fect and lead platforms to “conclude that the safe course is
to . . . not exercis[e] editorial discretion at all” rather than
explain why they remove “millions of posts per day.” Brief
57
Both lower courts reviewed these provisions under the Zauderer test.
And in the Florida case in particular, NetChoice did not contest—and ac-
cordingly forfeited—whether Zauderer applies here. See Brief for Ap-
pellants in No. 21–12355 (CA11), at 21; Brief for Appellees in No. 21–12355
(CA11), p. 44.
Page Proof Pending Publication

Cite
as: 603 U. S. 707 (2024)
797
Alito, J., concurring in judgment
for Respondents in No. 22–277, at 39–40 (internal quotation
marks
omitted).
Our unanimous agreement regarding NetChoice's failure
to show that a suffcient number of its members engage in
constitutionally protected expression prevents us from ac-
cepting NetChoice's argument regarding these provisions.
In the lower courts, NetChoice did not even try to show how
these disclosure provisions chill each platform's speech. In-
stead, NetChoice merely identifed one subset of one plat-
form's content that would be affected by these laws: billions
of nonconforming comments that YouTube removes each
year. 49 F. 4th, at 487; see also Brief for Appellees in No.
21–12355 (CA11), p. 23. But if YouTube uses automated
processes to fag and remove these comments, it is not clear
why having to disclose the bases of those processes would
chill YouTube's speech. And even if having to explain each
removal decision would unduly burden YouTube's First
Amendment rights, the same does not necessarily follow
with regard to all of NetChoice's members.
NetChoice's failure to make this broader showing is espe-
cially problematic since NetChoice does not dispute the
States' assertion that many platforms already provide a
notice-and-appeal process for their removal decisions. In
fact, some have even advocated for such disclosure require-
ments. Before its change in ownership, the previous Chief
Executive Offcer of the platform now known as X went as
far as to say that “all companies” should be required to ex-
plain censorship decisions and “provide a straightforward
process to appea l decisi ons made by humans or a lgo-
rithms.”
58
Moreover, as mentioned, many platforms are al-
ready providing similar disclosures pursuant to the Euro-
pean Union's Digital Services Act. Yet complying with that
58
Does Section 230's Sweeping Immunity Enable Big Tech Bad Behav-
ior? Hearing before the Senate Committee on Commerce, Science, and
Transportation, 116th Cong., 2d Sess., 2 (2020) (statement of Jack Dorsey,
CEO, Twitter, Inc.).
Page Proof Pending Publication

798 MOODY
v. NETCHOICE, LLC
Alito, J., concurring in judgment
law does not appear to have unduly burdened each platform's
speech
in those countries. On remand, the courts might
consider whether compliance with EU law chilled the plat-
forms' speech.
***
The only binding holding in these decisions is that Net-
Choice has yet to prove that the Florida and Texas laws they
challenged are facially unconstitutional. Because the major-
ity opinion ventures far beyond the question we must decide,
I concur only in the judgment.
Page Proof Pending Publication

Page Proof Pending Publication
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 766, line 20 from bottom: “with whom Justice Thomas and Justice
Gorsuch join” is inserted into the opinion line
p. 771, line 4 from bottom: “§ 203” is replaced with “§ 230”
p. 775, line 6: “their” is inserted after “of ”
p. 775, line 7: “a” is inserted after “as”
p. 783, line 11 from bottom: “comport” is replaced with “comports”