Case Information
*1 OCTOBER TERM, 2023 (Slip Opinion)
Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See
United States
v.
Detroit Timber & Lumber Co.,
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-me- dia 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 filter, pri- oritize, and label the varied third-party messages, videos, and other content their users wish to post. Both laws also include individualized- 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 As-
sociation (collectively, NetChoice)—trade associations whose members
include Facebook and YouTube—brought facial First Amendment
challenges 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.”
Syllabus
court held that the obligation to explain “millions of [decisions] per
day” is “unduly burdensome and likely to chill platforms’ protected
speech.”
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.
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. 9–31.
(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 substan-
tial number of [the law’s] applications are unconstitutional, judged in
relation to the statute’s plainly legitimate sweep.”
Americans for Pros-
perity Foundation Bonta
,
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 filter, 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 ac- tivities the laws cover, and measure the constitutional against the un- constitutional 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 Hansen
,
Syllabus
tected editorial discretion. And for the individualized-explanation pro- visions, 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 first view,” Cutter v. Wil-
kinson , 544 U. S. 709, 718, n. 7, this Court cannot undertake the needed inquiries. And because neither the Eleventh nor the Fifth Cir- cuit performed the facial analysis in the way described above, their decisions must be vacated and the cases remanded. Pp. 9–12.
(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 se- rious misunderstanding of First Amendment precedent and principle. Pp. 12–29. (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
,
Syllabus
message of “pride.” Id., at 561. It held that ordering the group’s ad- mittance 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 in compiling and curating others’ speech into an expressive product of its own is directed to accommodate messages it would prefer to ex- clude. Second, none of that changes just because a compiler includes most items and excludes just a few. It “is enough” for the compiler to exclude the handful of messages it most “disfavor[s].” Hurley , 515 U. S., at 574. Third, the government cannot get its way just by assert- ing an interest in better 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. 13–19. (2) “[W]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles” of the First Amend- ment “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 pol- icies 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 algo- rithms to implement those standards—for example, to prefer content deemed particularly trustworthy or to suppress content viewed as de- ceptive. Beyond ranking content, platforms may add labels, to give users additional context. And they also remove posts entirely that con- tain prohibited subjects or messages, such as pornography, hate speech, and misinformation on certain topics. The platforms thus un- abashedly control 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—cannot de- mote, label, or remove them—whenever the action is based on the
Syllabus
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-me-
dia platforms curate their feeds by combining “multifarious voices” to
create 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
,
That those platforms happily convey the lion’s share of posts sub- mitted to them makes no significant First Amendment difference. In Hurley , the Court held that the parade organizers’ “lenient” admis- sions 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 prohibit them from deleting posts they disfavor. Pp. 19–26.
(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 in-
terest: 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 IMS Health
Inc.
,
No. 22–277,
manded.
Syllabus
K AGAN , J., delivered the opinion of the Court, in which R OBERTS , C. J., and S OTOMAYOR , K AVANAUGH , and B ARRETT , JJ., joined in full, and in which J ACKSON , J., joined as to Parts I, II and III–A. B ARRETT , J., filed a concurring opinion. J ACKSON , J., filed an opinion concurring in part and concurring in the judgment. T HOMAS , J., filed an opinion concurring in the judgment. A , J., filed an opinion concurring in the judgment, in which T HOMAS and G ORSUCH , JJ., joined.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers 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. SUPREME COURT OF THE UNITED STATES
_________________ Nos. 22–277 and 22–555 _________________ ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA, ET AL ., PETITIONERS 22–277 v.
NETCHOICE, LLC, DBA NETCHOICE, ET AL . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT NETCHOICE, LLC, DBA NETCHOICE, ET AL .,
PETITIONERS
22–555 v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[July 1, 2024]
J USTICE K AGAN delivered the opinion of the Court.* Not even thirty years ago, this Court felt the need to ex- plain to the opinion-reading public that the “Internet is an 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 million people used the internet. See id. , at 850. Today, Facebook 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 define the internet.
*J USTICE J ACKSON joins Parts I, II, and III–A of this opinion.
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 busi- nesses, civic organizations, and governments. The novel services they offer make our lives better, and make them worse—create unparalleled opportunities and unprece- dented dangers. 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 leg- islatures 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 suggests that some platforms, in at least some functions, are indeed engaged in expression. In constructing certain 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 has seen before. Traditional publishers and editors also se- lect 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
Opinion of the Court
expression 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’ ca- pacity to engage in content moderation—to filter, prioritize, and label the varied messages, videos, and other content their users wish to post. In addition, though far less ad- dressed in this Court, the laws require a platform to provide an individualized explanation to a user if it removes or al- ters 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 review of preliminary injunctions. The Court of Appeals for the Eleventh Circuit upheld such an injunction, finding 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 Appeals 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 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 revealed that the laws might apply to, and differently affect, other kinds of websites and apps. In a facial chal- lenge, that could well matter, even when the challenge is
Opinion of the Court
brought under the First Amendment. As explained below, the question in such a case is whether a law’s unconstitu- tional applications are substantial compared to its constitu- tional ones. To make that judgment, a court must deter- mine 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 be- low—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 judgments this Court has previously held to receive First Amendment protection. It prevents a platform from compiling the third-party speech it wants in the way it wants, and thus from offering the expressive product that most reflects its own views and priorities. Still more, the law—again, in that specific application—is un- likely to withstand First Amendment scrutiny. Texas has thus far justified the law as necessary to balance the mix of speech on Facebook’s News Feed and similar platforms; and the record reflects that Texas officials passed it because they thought those feeds skewed against politically con- servative voices. But this 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 platforms as it does for others.
In sum, there is much work to do below on both these
Opinion of the Court
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 al- low 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 Face- book and YouTube—host a staggering amount of content. Facebook users, for example, share more than 100 billion messages every day. See App. in No. 22–555, at 67a. And YouTube 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 Stand- ards and Community Guidelines. Those rules list the sub- jects or messages the platform prohibits or discourages— say, pornography, hate speech, or misinformation on select topics. The rules thus lead Facebook and YouTube to re- move, disfavor, or label various posts based on their con- tent.
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
Opinion of the Court
content-moderation provisions, restricting covered plat- forms’ choices about whether and how to display user- generated content to the public. And both include individualized-explanation provisions, requiring platforms to give reasons for particular content-moderation choices.
Florida’s law regulates “social media platforms,” as de- fined 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[ing]” or otherwise disfavoring 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). Simi- larly, the law prevents deprioritizing posts by or about po- litical candidates. See §501.2041(2)(h). And the law requires platforms to apply their content-moderation prac- tices to users “in a consistent manner.” §501.2041(2)(b).
In addition, the Florida law mandates that a platform provide an explanation to a user any time it removes or al- ters any of her posts. See §501.2041(2)(d)(1). The requisite notice must be delivered within seven days, and contain both a “thorough rationale” for the action and an account of how the platform became aware of the targeted material. §501.2041(3).
The Texas law regulates any social-media platform, hav- ing over 50 million monthly active users, that allows its us- ers “to communicate with other users for the primary pur- pose of posting information, comments, messages, or images.” Tex. Bus. & Com. Code Ann. §§120.001(1),
[1] The definition 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).
Opinion of the Court
120.002(b) (West Cum. Supp. 2023). 2 With several excep- tions, 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 other- wise discriminate against expression.” §143A.001(1). The statute also requires that “concurrently with the removal” of user content, the platform shall “notify the user” and “ex- plain the reason the content was removed.” §120.103(a)(1). The user gets a right of appeal, and the platform must ad- dress an appeal within 14 days. See §§120.103(a)(2), 120.104.
Soon after Florida and Texas enacted those statutes,
NetChoice LLC and the Computer & Communications In-
dustry Association (collectively, NetChoice)—trade associa-
tions whose members include Facebook and YouTube—
brought facial First Amendment challenges against the two
laws. District courts in both States entered preliminary in-
junctions, halting the laws’ enforcement. See 546 F. Supp.
3d 1082, 1096 (ND Fla. 2021);
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
[2] The statute further clarifies that it does not cover internet service providers, email providers, and any online service, website, or app con- sisting “primarily of news, sports, entertainment, or other information or content that is not user generated but is preselected by the provider.” §120.001(1).
Opinion of the Court
“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 content and viewpoints that are valuable and appropriate for dis- semination.” Id. , at 1210. The court concluded that the content-moderation provisions are unlikely to survive “in- termediate—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 Office of Disciplinary Counsel of Supreme Court of Ohio , 471 U. S. 626 (1985), 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 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 Amend-
ment.
We granted certiorari to resolve the split between the
Fifth and Eleventh Circuits.
Opinion of the Court II NetChoice chose to litigate these cases as facial chal- lenges, and that decision comes at a cost. For a host of good reasons, courts usually handle constitutional claims case by case, not en masse. See Washington State Grange v. Wash- ington State Republican Party , 552 U. S. 442, 450–451 (2008). “Claims of facial invalidity often rest on specula- tion” about the law’s coverage and its future enforcement. Id. , at 450. And “facial challenges threaten to short circuit the democratic process” by preventing duly enacted laws from being implemented in constitutional ways. Id. , at 451. This 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 Sa-
lerno
,
So far in these cases, no one has paid much attention to
Opinion of the Court
that issue. In the lower courts, NetChoice and the States
alike treated the laws as having certain heartland applica-
tions, and mostly confined their battle to that terrain. More
specifically, 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 filter, alter, or la-
bel their users’ posts. Or more specifically still, the focus
was on how the laws applied to Facebook’s News Feed and
YouTube’s homepage. Reflecting the parties’ arguments,
the Eleventh and Fifth Circuits also mostly confined their
analysis in that way. See
The first 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 manage- ment? See Tr. of Oral Arg. in No. 22–555, pp. 62–63; Tr. of Oral Arg. in No. 22–277, pp. 24–25; App. in No. 22–277, pp. 129, 159. And beyond those social-media entities, what
Opinion of the Court
do the laws have to say, if anything, about how an email provider like Gmail filters incoming messages, how an online marketplace like Etsy displays customer reviews, how a payment service like Venmo manages friends’ finan- cial 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 sympa- thy [for the Court] here. In preparation 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 online world is variegated and com- plex, encompassing an ever-growing number of apps, ser- vices, functionalities, and methods for communication and connection. Each might (or might not) have to change be- cause of the provisions, as to either content moderation or individualized explanation, in Florida’s or Texas’s law. Be- fore a court can do anything else with these facial chal- lenges, 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 editorial discretion. See infra , at 13–19. And for the individualized-explanation provisions, it means asking, again as to each thing covered, whether the required disclo- sures 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 Fa- cebook’s News Feed (considered in the courts below) and, say, its direct messaging service (not so considered). Curat- ing a feed and transmitting direct messages, one might think, involve different levels of editorial choice, so that the one creates an expressive product and the other does not.
Opinion of the Court
If so, regulation of those diverse activities could well fall on different sides of the constitutional line. To decide the fa- cial challenges here, the courts below must explore the laws’ full range of applications—the constitutionally impermissi- ble and permissible both—and compare the two sets. Maybe the parties treated the content-moderation choices reflected in Facebook’s News Feed and YouTube’s homep- age 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 par- ties’ 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 first
view.”
Cutter Wilkinson
,
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
First Amendment’s restraints.
Opinion of the Court
held, Texas’s interest in better balancing the marketplace 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 find that significant applications of the Texas law—and so significant inputs into the appropriate facial analysis—raise no First Amend- ment difficulties. But that conclusion would rest on a seri- ous misunderstanding of First Amendment precedent and principle. The Fifth Circuit was wrong in concluding that Texas’s restrictions on the platforms’ selection, ordering, and labeling of third-party posts do not interfere with ex- pression. And the court was wrong to treat as valid Texas’s interest in changing the content of the platforms’ feeds. Ex- plaining 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 caveat: Nothing said here addresses any of the laws’ other applications, which may or may not share the First Amendment problems described below.
A
Despite the relative novelty of the technology before us, the main problem in this case—and the inquiry it calls for— is not new. At bottom, Texas’s law requires the platforms to carry and promote user speech that they would rather
[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
unduly burden expressive activity. See
Zauderer Office of Disciplinary
Counsel of Supreme Court of Ohio
,
Opinion of the Court
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. Tornillo , 418 U. S. 241 (1974). There, a Florida law re- quired a newspaper to give a political candidate a right to reply when it published “criticism and attacks on his rec- ord.” Id. , at 243. The Court held the law to violate the First Amendment because it interfered with the newspaper’s “ex- ercise of editorial control and judgment.” Id. , at 258. Forc- ing the paper to print what “it would not otherwise print,” the Court explained, “intru[ded] into the function of edi- tors.” Id. , at 256, 258. For that function was, first and fore- most, 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 recog- nized a possible 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 “manipulate popular opinion.” Id. , at 249–250. And the Court expressed some sympathy with that diagnosis. See id. , at 254. But the cure proposed, it concluded, collided with the First Amendment’s antipathy to state manipula- tion of the speech market. Florida, the Court explained,
Opinion of the Court
could not substitute “governmental regulation” for the “cru- cial process” of editorial choice. Id. , at 258.
Next up was
Pacific Gas & Elec. Co.
v.
Public Util.
Comm’n of Cal.
,
In Turner Broadcasting System, Inc. v. FCC , 512 U. S. 622 (1994) ( Turner I ), the Court further underscored the constitutional protection given to editorial choice. At issue were federal “must-carry” rules, requiring cable operators to allocate some of their channels to local broadcast sta- tions. The Court had no doubt that the First Amendment was implicated, because the operators were engaging in ex- pressive activity. They were, the Court explained, “exercis- ing editorial discretion over which stations or programs to include in [their] repertoire.” Id. , at 636. And the rules “interfere[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 28, n. 10. But for purposes of today’s cases, the takeaway of Turner is this holding: A private party’s collection of third-party con- tent into a single speech product (the operators’ “repertoire”
Opinion of the Court
of programming) is itself expressive, and intrusion into that activity must be specially justified under the First Amend- ment.
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
unanimously that the First Amendment precluded that
compulsion. The “selection of contingents to make a pa-
rade,” it explained, is entitled to First Amendment protec-
tion, no less than a newspaper’s “presentation of an edited
compilation of [other persons’] speech.”
Id.
, at 570 (citing
Tornillo
,
On two other occasions, the Court distinguished
Tornillo
and its progeny for the flip-side reason—because in those
cases the compelled access did
not
affect the complaining
party’s own expression. First, in
PruneYard Shopping Cen-
ter Robins
,
Opinion of the Court
Rumsfeld
v.
Forum for Academic and Institutional Rights,
Inc.
,
That is a slew of individual cases, so consider three gen- eral points to wrap up. Not coincidentally, they will figure in the upcoming discussion of the First Amendment prob- lems the statutes at issue here likely present as to Face- book’s News Feed and similar products.
First, the First Amendment offers protection when an en-
tity engaging in expressive activity, including compiling
and curating others’ speech, is directed to accommodate
messages it would prefer to exclude. “[T]he editorial func-
tion itself is an aspect of speech.”
Denver Area Ed. Telecom-
munications 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
presentation” of content is “engage[d] in speech activity.”
Arkansas Ed. Television Comm’n Forbes
,
Opinion of the Court
own. And that activity results in a distinctive expressive product. When the government interferes with such edito- rial choices—say, by ordering the excluded to be included— it alters the content of the compilation. (It creates a differ- ent opinion page or parade, bearing a different message.) And in so doing—in overriding a private party’s expressive choices—the government confronts the First Amendment.
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,
public service, trade union, and eleemosynary themes, as
well as conflicting messages.”
Third, the government cannot get its way just by assert- ing an interest in improving, or better balancing, the mar- ketplace of ideas. Of course, it is critically important to have a well-functioning sphere of expression, in which citi- zens have access to information from many sources. That
[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.
Opinion of the Court
is the whole project of the First Amendment. And the gov-
ernment can take varied measures, like enforcing competi-
tion laws, to protect that access. Cf.,
e.g.
,
Turner I
, 512
U. S., at 647 (protecting local broadcasting);
Hurley
, 515
U. S., at 577 (discussing
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 re-
jigger the expressive realm. The regulations in
Tornillo
,
PG&E
, and
Hurley
all were thought to promote greater di-
versity of expression. See
supra
, at 14–16. They also were
thought to counteract advantages some private parties pos-
sessed in controlling “enviable vehicle[s]” for speech.
Hur-
ley
,
B
“[W]hatever the challenges of applying the Constitution
to ever-advancing technology, the basic principles” of the
First Amendment “do not vary.”
Brown Entertainment
Merchants Assn.
,
Opinion of the Court
just described. Those principles have served the Nation well over 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 ap- plications that must now be considered. See supra , at 12. But in reviewing the District Court’s preliminary injunc- tion, the Fifth Circuit got its likelihood-of-success finding wrong. Texas is not likely to succeed in enforcing its law against the platforms’ 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 speaker’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 unini- tiated, though, each of those feeds presents a user with a continually updating stream of other users’ posts. For Fa- cebook’s News Feed, any user may upload a message, whether verbal or visual, with content running the gamut from “vacation 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 mobile app receives an individualized list of video 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
Opinion of the Court
based on a user’s expressed interests and past activities. But it may also be based on more general features of the communication or its creator. Facebook’s Community Standards and YouTube’s Community Guidelines detail the messages and videos that the platforms disfavor. The plat- forms write algorithms to implement those standards—for example, to prefer content deemed particularly trustworthy or to suppress content viewed as deceptive (like videos pro- moting “conspiracy theor[ies]”). Id. , at 113a.
Beyond rankings lie labels. The platforms may attach “warning[s], disclaimers, or general commentary”—for ex- ample, informing users that certain content has “not been verified by official 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 identifies 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 exam- ple, proscribe posts—with exceptions for “news- worth[iness]” and other “public interest value”—in catego- ries and subcategories including: Violence and Criminal Behavior ( e.g. , violence and incitement, coordinating harm and publicizing crime, fraud and deception); Safety ( e.g. , su- icide and self-injury, sexual exploitation, bullying and har- assment); 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 Guidelines similarly target videos falling within categories like: hate speech, violent or graphic content, child safety, and misinformation (including about elections and vaccines). See id. , at 430a–432a. The platforms thus *28 22
Opinion of the Court
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 “censor[ing]” a “user’s expression” based on its “viewpoint.” §143A.002(a)(2); see supra , at 7. The law defines “expres- sion” broadly, thus including pretty much anything that might be posted. See §143A.001(2). And it defines “censor” to mean “block, ban, remove, deplatform, demonetize, de- boost, restrict, deny equal access or visibility to, or other- wise discriminate against expression.” §143A.001(1). 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 2 (B ARRETT , 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 10–11. The Texas so- licitor 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 “censor[ship]” of people. More specifically, it prohibits taking the desig- nated “censor[ial]” actions against any “user” based on his “viewpoint,” regardless of whether that “viewpoint is expressed on a social media plat- form.” §§143A.002(a)(1), (b); see supra , at 7. Because the Fifth Circuit did not focus on that provision, instead confining its analysis to the law’s ban on “censor[ing]” a “user’s expression” on the platform, we do the same.
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 pro- foundly alters the platforms’ choices about the views they will, and will not, convey.
And we have time and again held that type of regulation to interfere with protected speech. Like the editors, cable [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 because 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 Guide- lines. See https://transparency.meta.com/policies/community-standards; https://support.google.com/youtube/answer/9288567.
Opinion of the Court
operators, and parade organizers this Court has previously considered, the major social-media platforms are in the business, when curating their feeds, of combining “multi- farious 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 viewpoint. 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 “de- cisions made [as to] content,” the “treatment of public is- sues”—“whether fair or unfair”—all these “constitute the exercise of editorial control and judgment.” Tornillo , 418 U. S., at 258. For a paper, and for a platform too. And the Texas law (like Florida’s earlier right-of-reply statute) tar- gets 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 significant First Amend- ment difference. Contra, 49 F. 4th, at 459–461 (arguing otherwise). 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 Community Guidelines set out in copious detail the varied kinds of speech the platforms want no truck with. And both platforms appear to put those manuals to work. In a single quarter of 2021, Facebook removed from its News Feed more than 25 million pieces of “hate speech content” and
Opinion of the Court
almost 9 million pieces of “bullying and harassment con- tent.” App. in No. 22–555, at 80a. Similarly, YouTube de- leted in one quarter more than 6 million videos violating its Guidelines. See id. , at 116a. And among those are the re- movals 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 organ- izers welcomed pretty much everyone, excluding only those who expressed a message of gay pride. See supra , at 18. The Court held that the organizers’ “lenient” admissions policy—and their resulting failure to express a “particular- ized message”—did “not forfeit” their right to reject the few messages they found harmful or offensive. 515 U. S., at 569, 574. So too here, though the excluded viewpoints dif- fer. That Facebook and YouTube convey a mass of mes- sages 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 editorial choice to convey all speech except in se- lect 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,
Opinion of the Court
such misattribution). Yet all those entities, the Court held,
were entitled to First Amendment protection for refusing to
carry the speech. See
supra
, at 14–16. To be sure, the
Court noted in
PruneYard
and
FAIR
, when denying such
protection, that there was little prospect of misattribution.
See
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 intermedi-
ate scrutiny. But here we need not. Even assuming that
the less stringent form of First Amendment review applies,
Texas’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
,
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 this Court, Texas described its law as “respond[ing]” to the
Opinion of the Court
platforms’ practice of “favoring certain viewpoints.” Brief
for Texas 7; see
id.
, at 27 (explaining that the platforms’
“discrimination” among messages “led to [the law’s] enact-
ment”). The large social-media platforms throw out (or en-
cumber) certain messages; Texas wants them kept in (and
free from encumbrances), because it thinks that would cre-
ate a better speech balance. The current amalgam, the
State explained in earlier briefing, was “skewed” to one
side.
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.
,
Opinion of the Court
dangers to free expression, there are few greater than al-
lowing the government to change the speech of private ac-
tors in order to achieve its own conception of speech nir-
vana. That is why we have said in so many contexts that
the government may not “restrict the speech of some ele-
ments of our society in order to enhance the relative voice
of others.”
Buckley Valeo
,
The Court’s decisions about editorial control, as discussed
earlier, make that point repeatedly. See
supra
, at 18–19.
Again, the question those cases had in common was
whether the government could force a private speaker, in-
cluding a compiler and curator of third-party speech, to con-
vey views it disapproved. And in most of those cases, the
government defended its regulation as yielding greater bal-
ance in the marketplace of ideas. But the Court—in
Tornillo
, in
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 pa-
rade organizer—whether acting “fair[ly] or unfair[ly]”—
could exclude the unwanted message, free from government
interference.
Tornillo
,
[10] Texas claims Turner as a counter-example, but that decision offers
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 26–27. 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 differ- ent expressive product, communicating different values and priorities. But under the First Amendment, that is a preference Texas may not impose.
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
to local broadcast stations, passed First Amendment muster. See
supra
,
at 15. 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” dissem-
inated 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 compe-
tition policy: The FCC needed to limit the cable operators’ “monopolistic,”
gatekeeping position “in order to allow for the survival of broadcasters.”
Opinion of the Court IV These are facial challenges, and that matters. To succeed on its First Amendment claim, NetChoice must show that the law at issue (whether from Texas or from Florida) “pro- hibits 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 cover- age. It must then decide which of the law’s applications are constitutionally permissible and which are not, and finally weigh the one against the other. The need for NetChoice to carry its burden on those issues is the price of its decision to challenge 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 significant input into the facial analysis.
The parties 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 in-
fluencing the content of those feeds are, contrary to the
Fifth Circuit’s view, protected expressive activity. And
Texas may not interfere with those judgments simply be-
cause it would prefer a different mix of messages. How that
matters for the requisite facial analysis is for the Fifth Cir-
cuit to decide. But it should conduct that analysis in keep-
ing with two First Amendment precepts. First, presenting
a curated and “edited compilation of [third party] speech” is
itself protected speech.
Hurley
,
Opinion of the Court
expression of ideas, promoting those it favors and suppress- ing those it does not. And that is what the First Amend- ment protects all of us from.
We accordingly vacate the judgments of the Courts of Ap- peals for the Fifth and Eleventh Circuits and remand the cases for further proceedings consistent with this opinion.
It is so ordered.
B ARRETT , J., concurring
SUPREME COURT OF THE UNITED STATES
_________________ Nos. 22–277 and 22–555 _________________ ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA, ET AL ., PETITIONERS 22–277 v.
NETCHOICE, LLC, DBA NETCHOICE, ET AL . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT NETCHOICE, LLC, DBA NETCHOICE, ET AL .,
PETITIONERS
22–555 v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[July 1, 2024]
J USTICE B ARRETT , 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
B ARRETT , J., concurring
those functions is complicated enough without simultane- ously analyzing how it bears on a platform’s other func- tions— e.g. , Facebook Messenger and Google Search—much less to distinct platforms like Uber and Etsy. In fact, deal- ing 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 qualifies 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 particu- lar political candidate or advocating some position on a public-health issue. If they create an algorithm to help them identify and delete that content, the First Amend- ment 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 imple- ment human beings’ inherently expressive choice “to ex- clude a message [they] did not like from” their speech com- pilation. Id. , at 574.
But what if a platform’s algorithm just presents automat- ically 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 22, 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 language models to determine what is “hateful” and should be re- moved, has a human being with First Amendment rights made an inherently expressive “choice . . . not to propound
B ARRETT , J., concurring
a particular point of view”?
Hurley
,
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 corpo-
rations generally.”
Hurley
,
These are just a few examples of questions that might
B ARRETT , J., concurring
arise in litigation that more thoroughly exposes the rele-
vant 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 invoca-
tion of its First Amendment rights. Regardless, the analy-
sis is bound to be fact intensive, and it will surely vary from
function to function and platform to platform. And in a fa-
cial challenge, answering all of those questions isn’t even
the end of the story: The court must then find a way to
measure the unconstitutional relative to the constitutional
applications to determine whether the law “prohibits a sub-
stantial amount of protected speech relative to its plainly
legitimate sweep.”
United States Hansen
,
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 specific functions—like feeds versus di- rect messaging—are inherently expressive and answer platform- and function-specific 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.
Opinion of J ACKSON , J.
SUPREME COURT OF THE UNITED STATES
_________________ Nos. 22–277 and 22–555 _________________ ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA, ET AL ., PETITIONERS 22–277 v.
NETCHOICE, LLC, DBA NETCHOICE, ET AL . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT NETCHOICE, LLC, DBA NETCHOICE, ET AL .,
PETITIONERS
22–555 v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[July 1, 2024]
J USTICE J ACKSON , 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 difficult to say much more at this time. With these records and lower court decisions, we are not able to adequately evalu- ate whether the challenged state laws are facially valid.
That is in no small part because, as all Members of the
Opinion of J ACKSON , J.
Court acknowledge, plaintiffs bringing a facial challenge must clear a high bar. See ante, at 9–10 (majority opinion); post , at 13–14 (A , J., concurring in judgment). The Eleventh Circuit failed to appreciate the nature of this chal- lenge, and the Fifth Circuit did not adequately evaluate it. That said, I agree with J USTICE B ARRETT that the Eleventh Circuit at least fairly stated our First Amendment prece- dent, whereas the Fifth Circuit did not. See ante , at 1 (con- curring opinion); see also ante, at 13–19 (majority opinion). 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 specificity. The question is not whether
an entire category of corporations (like social media compa-
nies) or a particular entity (like Facebook) is generally en-
gaged in expression. Nor is it enough to say that a given
activity (say, content moderation) for a particular service
(the News Feed, for example) seems roughly analogous to a
more familiar example from our precedent. Cf.
Red Lion
Broadcasting Co. FCC
,
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 poten- tial ruling on the merits. Faced with difficult constitutional
Opinion of J ACKSON , J.
issues arising in new contexts on undeveloped records, this
Court should strive to avoid deciding more than is neces-
sary. See
Ashwander TVA
,
T HOMAS SUPREME COURT OF THE UNITED STATES
_________________ Nos. 22–277 and 22–555 _________________ ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA, ET AL ., PETITIONERS 22–277 v.
NETCHOICE, LLC, DBA NETCHOICE, ET AL . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT NETCHOICE, LLC, DBA NETCHOICE, ET AL .,
PETITIONERS
22–555 v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[July 1, 2024]
J USTICE T HOMAS , 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 discussion is unnecessary to its holding. See Jama Im- migration and Customs Enforcement , 543 U. S. 335, 351, n. 12 (2005) (“Dictum settles nothing, even in the court that utters it”). Moreover, the Court engages in the exact type of analysis that it chastises the Courts of Appeals for per- forming. It faults the Courts of Appeals for focusing on only one subset of applications, rather than determining
T HOMAS whether each statute’s “full range of applications” are con- stitutional. See ante, at 10, 12. But, the Court repeats that very same error. Out of the sea of “variegated and complex” functions that platforms perform, ante , at 11, the Court plucks out two (Facebook’s News Feed and YouTube’s homepage), and declares that they may be protected by the First Amendment. See ante, at 26 (opining on what the “current record suggests”). The Court does so on a record that it itself describes as “incomplete” and “underdevel- oped,” ante, at 12, 20, and by sidestepping several pressing factual and legal questions, see post , at 29–32 (A LITO , J., concurring in judgment). As J USTICE A LITO explains, the Court’s approach is both unwarranted and mistaken. See ibid .
I agree with J USTICE A LITO ’s analysis and join his opin- ion in full. I write separately to add two observations on the merits and to highlight a more fundamental jurisdic- tional problem. The trade associations have brought facial challenges alleging that H. B. 20 and S. B. 7072 are uncon- stitutional in many or all of their applications. But, Art- icle III of the Constitution permits federal courts to exercise judicial power only over “Cases” and “Controversies.” Ac- cordingly, federal courts can decide whether a statute is constitutional only as applied to the parties before them— they lack authority to deem a statute “facially” unconstitu- tional.
I
As J USTICE A 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 22–29. 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
in
Zauderer
v.
Office of Disciplinary Counsel of Supreme
Court of Ohio
,
T HOMAS 11. In that case, the Court held that laws requiring the dis-
closure of factual information in commercial advertising
may satisfy the First Amendment if the disclosures are
“reasonably related” to the Government’s interest in pre-
venting consumer deception.
Second, the common-carrier doctrine should continue to
guide the lower courts’ examination of the trade associa-
tions’ claims on remand. See
post
, at 18, and n. 17, 30 (opin-
ion of A , 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.
,
T HOMAS 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 precedents also prevent us from applying the common-car- rier doctrine in this posture. At a minimum, we would need to pinpoint the regulated parties and specific 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 considera- ble hurdles that currently preclude resolution of the trade associations’ claims. See ante, at 9–10; ante , at 1–4 (B ARRETT , J., concurring); post , at 22–32 (opinion of A , J.). The most significant 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
challenge, is “an attack on a statute itself as opposed to a
particular application.”
Los Angeles
v.
Patel
,
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 Bonta
,
T HOMAS challenges creates practical concerns as well. Facial chal- lenges’ dubious historical roots further confirm that the doctrine should have no place in our jurisprudence.
A
Article III empowers federal courts to exercise “judicial
Power” only over “Cases” and “Controversies.” This Court
has long recognized that those terms impose substantive
constraints 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
,
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 branches. DaimlerChrysler Corp. Cuno , 547 U. S. 332, 341 (2006) (internal quotation marks omitted). “[E]ach *50 6
T HOMAS branch [is vested] with an exclusive form of power,” and “no
branch can encroach upon the powers confided to the oth-
ers.”
Patchak
v.
Zinke
,
Facial challenges conflict with Article III’s case-or- controversy requirement because they ask a federal court to decide whether a statute might conflict with the Consti- tution in cases that are not before the court.
To bring a facial challenge under our precedents, a plain-
tiff must ordinarily “establish that no set of circumstances
exists under which the Act would be valid.”
United States
v.
Salerno
,
T HOMAS 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 con- duct 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 plain- tiff who challenges it, that case or controversy is resolved. Either the court remedies the plaintiff ’s injury, or it deter- mines 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 is-
sue at all, and
especially
should not issue with regard to a
constitutional question, as to which we seek to avoid even
non
advisory opinions.”
Chicago Morales
,
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
maintain a suit in a federal court—and thus invoke judicial
power—only if he has suffered an “injury” with a “traceable
connection” to the “complained-of conduct of the defendant.”
Steel Co.
,
T HOMAS
tels, LLC
v.
Laufer
,
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.
,
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 uncon- stitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an 9
T HOMAS act.” Massachusetts v. Mellon , 262 U. S. 447, 488 (1923). Resolving facial challenges thus violates Article III. 1
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
5–6. That necessarily alters the balance of powers: When
one branch exceeds its vested power, it becomes stronger
relative to the other branches. See
Free Enterprise Fund
v.
Public Company Accounting Oversight Bd
.,
Moreover, by exceeding their Article III powers, federal
courts risk interfering with the executive and legislative
functions. Facial challenges enable federal courts to review
the constitutionality of a statute in many or all of its appli-
cations—often before the statute has even been enforced.
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 consti-
tutional role in lawmaking. When courts take on the super-
visory role of judging statutes in the abstract, they thus “as-
sume a position of authority over the governmental acts of
another and co-equal department, an authority which
plainly [they] do not possess.”
Mellon
,
Comparing the effects of as-applied challenges and facial
[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 Bonta
,
T HOMAS challenges 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 Washington State Republican
Party
,
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 Consti- tution.” Ibid.
In a similar vein, facial challenges distort the relation-
ship between the Federal Government and the States. The
Constitution “establishes a system of dual sovereignty be-
tween the States and the Federal Government.”
Gregory
v.
Ashcroft
,
T HOMAS 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 chal- lenges), the federal court must do so in the first instance. Facial challenges thus increase the likelihood that federal courts must interpret novel state-law questions—a role typ- ically and appropriately reserved for state courts.
B
In addition to their constitutional infirmities, facial chal-
lenges also create practical problems. The case-or-controversy
requirement serves as the foundation of our adversarial
system. Rather than “ ‘sit[ting] as self-directed boards of
legal inquiry and research,’ ” federal courts serve as “ ‘arbi-
ters of legal questions presented and argued by the parties
before them.’ ”
NASA
v.
Nelson
,
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 en-
forced 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,”
Washington State Grange
,
T HOMAS ture interpretations of statutes in areas where their consti- tutional application might be cloudy.” Raines , 362 U. S., at 22. In short, facial challenges ask courts to resolve poten- tially thorny constitutional questions with little factual background and briefing 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 as- sociations challenge two state laws, the state actors have been left out of the picture. State officials had no oppor- tunity to tailor the laws’ enforcement. Nor could the legis- latures 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 first instance. And, they did so with little factual record to assist them. The trade associations’ reliance on our ques- tionable associational-standing doctrine is partially to blame. 2 But, the fact that the trade associations raise facial challenges has undeniably played a significant 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 members. There is thus not a single party in these suits that is actually regulated by the challenged statutes and can explain how specific provi- sions will infringe on their First Amendment rights. Instead, the trade associations assert their understanding of how the challenged statutes will regulate nonparties. As I have recently explained, “[a]ssociational standing raises constitu- tional concerns.” See FDA Alliance for Hippocratic Medicine , 602 U. S. 367, 399 (2024) (concurring opinion). Associational standing appears to conflict 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 injury. See id ., at 400.
T HOMAS even simple fact patterns, a court has little chance of deter- mining whether a novel, never-before-enforced state law can be constitutionally enforced against nonparties without resorting to mere speculation. For cases such as these, where the constitutional analysis depends on complex, fact- specific questions, the task becomes impossible.
D
Facial challenges are particularly suspect given their or- igins. 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 in-
sofar as necessary to resolve a particular case or contro-
versy. See
supra
, at 5–6. The Founders were certainly fa-
miliar with alternative systems that provided for the free-
floating review of duly enacted statutes. For example, the
New York Constitution of 1777 created a Council of Revi-
sion, composed of the Governor, Chancellor, and New York
Supreme Court. See
Hansen
,
In our Constitution, the Founders refused to create a council 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 creating a federal council of revision on four differ- ent occasions. No other proposal was considered and re- jected so many times.” Id ., at 789 (citation omitted). In- stead, the Founders created a Judiciary with “only the *58 14
T HOMAS authority to resolve private disputes between particular parties, rather than matters affecting the general public.” Ibid. (internal quotation marks omitted). They considered judges “of all men the most unfit to have a veto on laws be- fore 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 narrow scope of judicial review. When the Court first
discussed the concept of judicial review in
Marbury
v.
Mad-
ison
, it made clear that such review is limited to what is
necessary for resolving “a particular cas[e]” before a court.
[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) (T HOMAS , J., concurring). The Council’s ability to lodge objections proved significant: “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 modifications.” 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 Council’s review only because Chancellor James Kent changed his decid- ing vote at the last minute, seemingly on a whim.” Ibid. Concerns over the Council’s “intrusive involvement in the legislative process” eventu- ally 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. Commissioners of Emigration , 113 U. S. 33, 39 (1885) (the Court “has no jurisdiction to pronounce any statute . . .
T HOMAS As best I can tell, the Court’s first departure from those
principles was the development of the vagueness doctrine.
See
Johnson
v.
United States
,
T HOMAS utes as unconstitutionally vague is consistent with the orig- inal meaning of the Due Process Clause.” Dimaya , 584 U. S., at 206 (opinion of T HOMAS , J.); see Johnson , 576 U. S., at 622 (opinion of T HOMAS , J.).
The vagueness doctrine was the direct ancestor of one
subset of modern facial challenges, the overbreadth doc-
trine. See
United States Sineneng-Smith
,
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
,
[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
,
T HOMAS text or history of the First Amendment.” Sineneng-Smith , 590 U. S., at 384 (opinion of T HOMAS , J.). Instead, the Court has supplied only “policy considerations and value judgments.” Ibid .
The overbreadth and vagueness doctrines’ method of fa-
cial invalidation eventually spread to other areas of law,
setting in motion our modern facial challenge doctrine. For
several decades after
Thornhill
, the Court continued to re-
sist the broad use of facial challenges. For example, in
Broadrick
v.
Oklahoma
,
Given how our facial challenge doctrine seems to have de- veloped—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 6–13. 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
[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
formula-
tion”);
United States Stevens
,
T HOMAS limitation of federal-court jurisdiction to actual cases or
controversies.”
Simon Eastern Ky. Welfare Rights Organ-
ization
,
* * *
The Court has recognized the problems that facial chal-
lenges pose, emphasizing that they are “disfavored,”
Wash-
ington State Grange
,
A LITO SUPREME COURT OF THE UNITED STATES
_________________ Nos. 22–277 and 22–555 _________________ ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA, ET AL ., PETITIONERS 22–277 v.
NETCHOICE, LLC, DBA NETCHOICE, ET AL . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT NETCHOICE, LLC, DBA NETCHOICE, ET AL .,
PETITIONERS
22–555 v.
KEN PAXTON, ATTORNEY GENERAL OF TEXAS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[July 1, 2024]
J USTICE A , with whom J USTICE T HOMAS and J USTICE G ORSUCH 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 unconsti- tutional 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 unjustified.
But given the incompleteness of this record, there is no *64 2
A 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 us- ers’ content, much less whether they do so in an inherently 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 unreflectively assumes the truth of NetChoice’s un- supported assertion that social-media platforms—which use secret algorithms to review and moderate an almost un- imaginable 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 con- curs only in the judgment.
I
As the Court has recognized, social-media platforms have
become the “modern public square.”
Packingham
v.
North
Carolina
,
[2] V. Filak, Exploring Mass Communication: Connecting With the 3
A social media to get the news, 3 and for many of them, life without social media is unimaginable. 4 Social media may provide many benefits—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.
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 cre- ated 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 restricting noncompliant users’ access to a plat- form.
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 official or candi- date for public office 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 ef- fect on popular views.
World of Media 210 (2024).
[3] Social Media and News Platform Fact Sheet, Pew Research Center (Nov. 15, 2023), https://www.pewresearch.org/journalism/fact-sheet/ social-media-and-news-fact-sheet. [4] M. Anderson, M. Faverio, & J. Gottfried, Pew Research Center, Teens, Social Media and Technology 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, Speci- fication Curve Analysis Shows That Social Media Use Is Linked to Poor Mental Health, Especially Among Girls, 224 Acta Psychologica 1, 8–12 (2022).
4
A Concerned that social-media platforms could abuse their enormous power, Florida and Texas enacted laws that pro- hibit them from disfavoring particular viewpoints and speakers. See S. B. 7072, 2021 Reg. Sess., §1(9) (Fla. 2021) (finding that “[s]ocial media platforms have unfairly cen- sored . . . Floridians”); H. B. 20, 87th Leg., Called Sess. (Tex. 2021) (prohibiting the “censorship of . . . expression on social media platforms” in Texas). Both statutes have a broad reach, and it is impossible to determine whether they are unconstitutional in all their applications without sur- veying those applications. The majority, however, provides only a cursory outline of the relevant provisions of these laws and the litigation challenging their constitutionality. To remedy this deficiency, I will begin with a more complete summary.
A
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 partici- pants globally.” Fla. Stat. §501.2041(1)(g) (2023). This def- inition is broad. There is no dispute that it covers large social-networking websites like Facebook, X, YouTube, and Instagram, but it may also reach e-commerce and other non-social-networking websites that allow users to leave re- views, ask and answer questions, or communicate with oth- ers 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 Foun- dation as Amicus Curiae 6; Brief for Yelp Inc. as Amicus Curiae 4, n. 4.
To prevent covered platforms from unfairly treating Floridians, S. B. 7072 imposes the following “content- moderation” and disclosure requirements: 5
A Content-moderation provisions . “Content moderation” is the gentle-sounding term used by internet platforms to de- note actions they take purportedly to ensure that user- provided content complies with their terms of service and “community standards.” The Florida law eschews this ne- ologism and instead uses the old-fashioned term “censor- ship.” To prevent platforms from discriminating against certain views or speakers, that law requires each regulated platform to enforce its “censorship . . . standards in a con- sistent manner among its users on the platform.” Fla. Stat. §501.2041(2)(b). The law defines “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 pro- hibits 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 ).
Although some platforms still have employees who mon- itor 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 De- velopers 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
[6] As relevant here, an “algorithm” is a program that platforms use to automatically “censor” or “moderate” content that violates their terms or conditions, to organize the results of a search query, or to display posts in a feed.
A rely on artificial intelligence (AI), a machine learning tool that arranges, deletes, and modifies content and learns from its own choices.
In addition to barring censorship, the Florida law at- tempts to prevent platforms from unfairly influencing elec- tions or distorting public discourse. To do this, it requires platforms to host candidates for public office and journal- istic enterprises. 7 §§501.2041(2)(h), (j). For the same rea- sons, the law also prohibits platforms from censoring posts made by or about candidates for public office. §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 requires platforms to publish their content-moderation standards and to inform users of any changes. §§501.2041(2)(a), (c). And whenever a platform censors a user, S. B. 7072 requires it to: (1) notify the user of the cen- sorship decision in writing within seven days; (2) provide “a thorough” explanation 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 authorizes the Florida attorney general to bring civil and administrative actions against noncomplying platforms. [7] A “journalistic enterprise” is defined 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 pub- lished 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 li- cense. Fla. Stat. §501.2041(1)(d). 7
A §501.2041(5). The law allows the Florida Elections Com- mission to fine platforms that fail to host candidates for public office. Fla. Stat. §106.072(3) (2023). And the law permits aggrieved users to sue and recover up to $100,000 for each violation of the content-moderation and disclosure provisions, along with actual damages, equitable relief, pu- nitive 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 inter- net platforms from liability for voluntary, good-faith efforts to restrict or remove content that is “obscene, lewd, lascivi- ous, filthy, excessively violent, harassing, or otherwise ob- jectionable.” 47 U. S. C. §230(c)(2)(A).
Days after S. B. 7072’s enactment, NetChoice filed 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 vi- olate 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
[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 Attorney Gen., Fla. , 34 F. 4th 1196, 1209 (2022). v.
A (ND Fla.), Doc. 106, p. 22 (citing Rumsfeld Forum for Ac- ademic and Institutional Rights, Inc. , 547 U. S. 47, 64 (2006) ( FAIR )). And, in any event, Florida argued that NetChoice’s facial challenge was likely to fail at the thresh- old because NetChoice had not identified which of its mem- bers were required to comply with the new law or how each of its members’ presentation of third-party speech ex- pressed that platform’s own message. Record, Doc. 106, at 30, 58–59; id ., Doc. 118, pp. 5, 24–25. Without this infor- mation, Florida said, it could not properly respond to NetChoice’s facial claim. Id ., Doc. 122, pp. 4–5. Florida re- quested a “meaningful opportunity to take discovery.” Tr. of Oral Arg. in No. 22–277, p. 154. NetChoice objected. Record, Doc. 122.
Despite these arguments, the District Court enjoined S. B. 7072 in its entirety before the law could go into effect. Florida appealed, maintaining, among other things, that NetChoice was “unlikely to prevail on the merits of [its] fa- cial First Amendment challenge.” Brief for Appellants in No. 21–12355 (CA11), p. 20; Reply Brief in No. 21–12355 (CA11), p. 15.
With just one exception, the Eleventh Circuit affirmed.
It first 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 consti-
tutionally protected expression.
NetChoice Attorney
Gen., Fla.
,
[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 Amend- ment”). 9
A disclosure provisions, which require only that platforms
publish their censorship policies, met the intermediate-
scrutiny standard set forth in
Zauderer
v.
Office of Disci-
plinary Counsel of Supreme Court of Ohio
, 471 U. S. 626
(1985).
B
Around the same time as the enactment of the Florida law, Texas adopted a similar measure, H. B. 20, which co- vers “social media platform[s]” with more than 50 million monthly users in the United States. Tex. Bus. & Com. Code Ann. §120.002(b) (West 2023). The statute defines a “ ‘[s]ocial media platform’ ” as an “[i]nternet website or ap- plication 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, com- ments, messages, 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] primarily 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 fol- lowing 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 *72 10
A location within Texas. 10,11,12 Tex. Civ. Prac. & Rem. Code Ann. §§143A.001(1), 143A.002(a)(1)–(3) (West Cum. Supp. 2023). However, the law allows platforms to censor speech that: federal law “specifically authorize[s]” them to censor; speech that the platform is told sexually exploits children or survivors of sexual abuse; speech that “directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of race, color, disability, religion, national origin or ancestry, age, sex or status as peace officer or judge”; and speech that is other- wise unlawful or has been the subject of a user’s request for removal from his or her feed or profile. §§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. Specifically, 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). [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), (defining “deplatform”; some punctuation omitted), https:// unabridged.merriam-webster.com/collegiate/deplatform (unless other- wise 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. (defining “demonetize”; some punctuation omitted), https://unabridged.merriam- webster.com/collegiate/demonetize.
[12] “Boosting on social media means [paying] a platform to amplify . . . posts for more reach.” C. Williams, HubSpot, Social Media Definitions: The Ultimate Glossary of Terms You Should Know (June 23, 2023), https://blog.hubspot.com/marketing/social-media-terms. De-boosting thus usually refers to when platforms refuse to continue increasing a post’s or user’s visibility to other users. [13] Texas has represented that a brief computer-generated notification to an affected user would satisfy the provision’s notification requirement. Brief for Respondent in No. 22–555, p. 44. 11
A Platforms must allow users to appeal removal decisions through “an easily accessible complaint system;” resolve such appeals within 14 business days (unless an enumer- ated exception applies); and, if the appeal is successful, pro- vide “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 provi- sions, as may the Texas attorney general. §143A.007(d). But unlike the Florida law, H. B. 20 authorizes only injunc- tive relief. §§143A.007(a), 143A.008. It contains a strong severability provision, §8(a), which reaches “every provi- sion, section, subsection, sentence, clause, phrase, or word in th[e] Act, and every application of [its] provisions.”
As it did in the Florida case, NetChoice sought a prelimi- nary injunction in federal court, claiming that H. B. 20 vio- lates the First Amendment in its entirety. In response, Texas 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 cen- sor 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 deficiency 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 unconstitu- tional.” Ibid. ; see also id ., Doc. 53, at 13 (arguing that v.
A NetChoice had failed to show that “H. B. 20 is . . . unconsti- tutional in all its applications” because “a number” of NetChoice’s members had conceded 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 Dis-
trict 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 judg-
ment 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 em-
phasized NetChoice’s alleged failure to show that H. B. 20
was unconstitutional in even a “ ‘substantial number of its
applications,’ ” the “bare minimum” showing that
NetChoice needed to make to prevail on its facial challenge.
E.g.,
Reply Brief in No. 21–51178 (CA5), p. 8 (quoting
Amer-
icans for Prosperity Foundation Bonta
,
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.’ ”
A
II
NetChoice contends that the Florida and Texas statutes
facially violate the First Amendment, meaning that they
cannot be applied to anyone at any time under any circum-
stances without violating the Constitution. Such chal-
lenges are strongly disfavored. See
Washington State
Grange
, 552 U. S., at 452. They often raise the risk of
“ ‘premature interpretatio[n] of statutes’ on the basis of fac-
tually barebones records.”
Sabri
v.
United States
, 541 U. S.
600, 609 (2004). They clash with the principle that courts
should neither “ ‘anticipate a question of constitutional law
in advance of the necessity of deciding it’ ” nor “ ‘formulate
a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.’ ”
Ashwander
v.
TVA
,
Facial challenges also strain the limits of the federal
courts’ constitutional authority to decide only actual
“Cases” and “Controversies.” Art. III, §2. “[L]itigants typi-
cally lack standing to assert the constitutional rights of
third parties.”
United States Hansen
,
For these reasons, we have insisted that parties mount-
ing facial attacks satisfy demanding requirements. In
United States Salerno
,
A sweep.” ’ ”
Washington State Grange
,
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 laws “cover expressive activity at all.” Tr. of Oral Arg. in No. 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 pro- visions 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
[14] At oral argument, NetChoice represented that “it’s the plainly legit-
imate 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 9 (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 signifi-
cantly compromise recognized First Amendment protections of parties
not before the Court.”
Members of City Council of Los Angeles Taxpay-
ers for Vincent
,
[15] See Reply Brief in No. 21–12355 (CA11), p. 15 (“Plaintiffs—in their facial challenge—have failed to demonstrate that even a significant sub- set of covered social media platforms engages in [expressive] conduct.” See also Brief for Appellants in No. 21–12355 (CA11), p. 20 (NetChoice
A NetChoice’s attempt to use “the party presentation rules” as grounds for blocking our consideration of the question whether it satisfied 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 applica-
tions 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
stipulate or bind [a court] to the application of an incorrect
legal standard.”
Gardner
v.
Galetka
, 568 F. 3d 862, 879
(CA10 2009); see also
Kairys
v.
Southern Pines Trucking,
Inc
.,
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 fight these laws on these terms, and the Court properly holds it to that decision.
is “unlikely 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 con- stitutional challenge”); Reply Brief in No. 21–51178 (CA5), p. 8 (arguing that NetChoice failed “to show at a bare minimum that [S. B. 20] is un- constitutional in a ‘substantial number of its applications’ ” (quoting Americans for Prosperity 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”).
A
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 provisions are facially invalid, NetChoice had to demonstrate that they lack a plainly legitimate sweep un- der the First Amendment. Our precedents interpreting that Amendment provide the numerator (the number of un- constitutional applications) and denominator (the total number of possible applications) that NetChoice was re- quired to identify in order to make that showing. Estimat- ing 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.
,
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 17
A about the poets and poems that most deserve the attention of their anticipated readers. Forcing the editors to exclude or include a poem could alter the expression that the editors wish to convey.
Not all compilations, however, have this expressive char- acteristic. 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;
Pacific Gas & Elec. Co.
v.
Public Util. Comm’n of Cal.
,
To show that a hosting requirement would compel speech and thereby trigger First Amendment scrutiny, a claimant must generally show three things.
First, a claimant must establish that its practice is to ex- ercise “editorial discretion in the selection and presenta- tion” 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 14. NetChoice describes this process
A as content “curation.” But whatever you call it, not all com-
pilers 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 accordingly, their conduct does not merit First Amend-
ment protection. 17
Miami Herald Publishing Co.
v.
Tornillo
,
Determining whether an entity should be viewed as a “cu-
rator” or a “dumb pipe” may not always be easy because dif-
ferent 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 classified advertisements it receives, regardless of their
content and without adding any expression of its own.
Compare
Tornillo
,
The same may be true for a parade organizer. For exam-
ple, the practice of a parade organizer may be to select the
[16]
American Broadcasting Cos.
v.
Aereo, Inc.
,
[17] The majority states that it is irrelevant whether “a compiler includes
most items and excludes just a few.”
Ante
, at 18. 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
,
A
groups
that are admitted, but not the
individuals
who are
allowed to march as members of admitted groups.
Hurley
,
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 comport 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 constitu- tional 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 17–18 .
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
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 Robins
,
Finally, a compiler must show that its “own message [is] *82 20
A affected by the speech it [is] forced to accommodate.” FAIR , 547 U. S., at 63. In core examples of expressive compila- tions, such as a book containing selected articles, chapters, stories, or poems, this requirement is easily satisfied. But in other situations, it may be hard to identify any message 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 first 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
identified with those of the owner.”
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 identified with” those of the schools themselves, and consequently, hosting the military recruiters did not “sufficiently interfere with any message of the school.” 547 U. S., at 64–65; contra, ante , at 25 (“[T]his Court has never hinged a compiler’s First Amendment protection on the risk of misattribu- tion.”).
[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 21
A
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 govern- ment 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 in- terest in fostering a free and open marketplace of ideas.
C
With these standards in mind, I proceed to the question 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 27, this is not the only
interest that Texas asserted. Texas has also invoked its interest in pre-
venting platforms from discriminating against speakers who reside in
Texas or engage in certain forms of off-platform speech. Brief for Re-
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 en-
gaging in “ ‘invidious discrimination in the distribution of publicly avail-
able goods, services, and other advantages.’ ”
Id.
, at 18. These are “com-
pelling state interests of the highest order” too.
Roberts United States
Jaycees
,
22
A whether the content-moderation provisions are facially valid. For the following three reasons, NetChoice failed to meet its burden.
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 first 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 filed 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 In- stagram, 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 provided a complete list.
NetChoice was similarly reluctant to identify its affected members in the Texas case. At first, NetChoice “repre- sented . . . that only Facebook, YouTube, and [X] are af- fected by the Texas law.” Brief for Appellant in No. 21– 51178 (CA5), at 1, 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, In- stagram, Pinterest, TikTok, Vimeo, X (formerly known as Twitter), and YouTube.” Brief for Petitioners in No. 22– [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. 23
A 555, p. 1. And websites such as Discord, 21 Reddit, 22 Wik- ipedia, 23 and Yelp 24 have filed 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 independ- ent speech product. Both laws also appear to cover Reddit
[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).
24
A and BeReal, 28 and websites like Parler, 29 which claim to en- gage in little or no content moderation at all. And Florida’s law, which is even broader than Texas’s, plainly applies to e-commerce platforms 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
receive 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
,
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 expressive” 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
[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-
appear. Because BeReal posts thus appear and disappear “
randomly
,”
even the Eleventh Circuit would agree that BeReal likely is not an ex-
pressive compilation.
A through private inboxes; post written 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 not all—of these functions. But such generalities are insufficient.
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 officials 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 “firsthand accounts” that re- flect 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 experi- ence.”
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 significant for First Amendment purposes. See Pittsburgh Press , 413 U. S. 376. But NetChoice has not developed the record on that front. Nor [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.
26
A has it shown what kinds of content appear across the di- verse array of regulated platforms.
Social-media platforms are diverse, and each may be unique in potentially significant ways. On the present rec- ord, we are ill-equipped to account for the many platform- specific features that allow users to do things like sell or purchase goods, live-stream events, request a ride, ar- range a date, create a discussion forum, wire money to friends, play a video game, hire an employee, log a run, or agree to watch a dog. The challenged laws may apply differently to these different functions, which may present different First Amendment issues. A court cannot invalidate the challenged laws if it has to speculate about their applications.
Third, NetChoice has not established
how
websites mod-
erate 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 confirming whether all of the
regulated platforms use algorithms to organize all of their
content, much less whether these algorithms are expres-
sive. See
Hurley
,
[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.
A range of topics. 45 But while Facebook uses algorithms to arrange and moderate its users’ posts, Reddit asserts that its content is moderated by Reddit users, “not by central- ized algorithms.” 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 ex- press 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 simi- lar 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 filed un- der 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
[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 writ- ten comments, photos, music, or other artistic mediums”); Brief for Red- dit, Inc., as Amicus Curiae 12 (“[T]he Reddit platform as a whole accom- modates a wide range of communities and modes of discourse”).
[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 plat-
forms are required to comply with this law. Compare Brief for Petition-
ers 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 hav-
ing to forgo “exercising editorial discretion at all,” Brief for Respondents
in No. 22–277, p. 40, then that might help them prove that their disclo-
sure laws are not “unduly burdensome” under
Zauderer
v.
Office of Dis-
ciplinary Counsel of Supreme Court of Ohio
,
A violent, obscene, sexually explicit, and false posts that vio- late their community guidelines. Brief for Developers Alli- ance et al. as Amici Curiae 11. Some platforms—like X, for instance—say they use algorithms, not for the purpose of removing all nonconforming speech, but to “promot[e] coun- terspeech” that “presents facts to correct misstatements” or “denounces hateful or dangerous speech.” 47 Still 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 find relevant content. The e-com- merce 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 cus- tomer-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 vid- eos a particular user viewed in the past, and each creator’s “expertise, authoritativeness, and trustworthiness on a given topic.”
[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 (visited 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 29
A These disclosures suggest that platforms can say some-
thing about their content-moderation practices without en-
abling malicious actors or disclosing proprietary infor-
mation. They also suggest that not all platforms curate all
third-party content in an inherently expressive way. With-
out more information about how regulated platforms mod-
erate content, it is not possible to determine whether these
laws lack “a ‘ “plainly legitimate sweep.” ’ ”
Washington
State Grange
,
For all these reasons, NetChoice failed to establish 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 opinion 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 justifies this discussion on the ground that the Fifth Circuit cannot apply the facial constitutionality test without resolving that ques- tion, see, e.g., ante, at 13, 30, but that is not necessarily true. Especially in light of the wide reach of the Texas law, NetChoice may still fall far short of establishing facial un- constitutionality—even if it is assumed for the sake of ar- gument that the Texas law is unconstitutional as applied to Facebook’s News Feed and YouTube’s homepage.
For this reason, the majority’s “guidance” on this issue may well be superfluous. Yet superfluity is not its most egregious flaw. The majority’s discussion also rests on wholly conclusory assumptions that lack record support. [53] This problem is even more pronounced for the Florida law, which covers more platforms and conduct than the Texas law.
30 v.
A 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 dis- close how these algorithms were created and how they ac- tually work. And the majority fails to give any serious con- sideration to key arguments pressed by the States. Most notable is the majority’s conspicuous failure to address the States’ contention that platforms like YouTube and Face- book—which constitute the 21st century equivalent of the old “public square”—should be viewed as common carriers. See Biden Knight First Amendment Institute at Columbia University , 593 U. S. ___, ___ (2021) (Thomas, J., concur- ring) (slip op., at 6). 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 significant 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- ically accepting this analogy, 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.
[54] Breaking Down the Numbers: How Much Data Does the World Cre- ate 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
A No human being could possibly review even a tiny frac- tion 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 find such a message, how likely is it that the addition of a small amount of discordant speech would change the overall mes- sage?
Now consider how newspapers and social-media plat- forms edit content. Newspaper editors are real human be- ings, and when the Court decided Tornillo (the case that the majority finds 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 “content moderation” carried out by platforms is not done by human beings. Instead, algorithms remove a small fraction of nonconforming posts post hoc and prioritize con- tent based on factors that the platforms have not revealed and may not even know. After all, many of the biggest plat- forms are beginning to use AI algorithms to help them mod- erate content. And when AI algorithms make a decision, “even the researchers and programmers creating them don’t really understand 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. 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. [56] T. Xu, AI Makes Decisions We Don’t Understand—That’s a Pro- blem, (Jul. 19, 2021), https://builtin.com/artificial-intelligence/ai-right- explanation.
32
A
American Express Co.
,
Instead, when confronted with the application of a consti- tutional requirement to new technology, we should proceed with caution. While the meaning of the Constitution re- mains constant, the application of enduring principles to new technology requires an understanding of that technol- ogy and its effects. Premature resolution of such questions creates the risk of decisions that will quickly turn into em- barrassments.
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 at-
tacks on the individual-disclosure provisions also fell short.
Those provisions require platforms to explain to affected us-
ers the basis of each content-censorship decision. Because
these regulations provide for the disclosure of “purely fac-
tual 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
burde[n]” speech.
And in the Florida case in particular, NetChoice did not contest—and
A , J., concurring in judgment 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 for Respondents in No. 22–277, at 39–40 (internal quotation marks omitted).
Our unanimous agreement regarding NetChoice’s failure to show that a sufficient 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 identified 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. 13. But if YouTube uses auto- mated processes to flag 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 fol- low 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 Officer of the platform now known as X went as accordingly 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.
A far as to say that “all companies” should be required to ex- plain censorship decisions and “provide a straightforward process to appeal decisions made by humans or algo- 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 law does not appear to have unduly burdened each plat- form’s speech in those countries. On remand, the courts might consider whether compliance with EU law chilled the platforms’ speech.
* * *
The only binding holding in these decisions is that NetChoice has yet to prove that the Florida and Texas laws they challenged are facially unconstitutional. Because the majority opinion ventures far beyond the question we must decide, I concur only in the judgment.
[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.).