NOTICE: This opinion is subject to formal
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															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]

															Justice Kagan delivered the opinion of the
Court.[ 1 ]*

															Not even thirty years ago, this Court felt the
need to explain 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.

															These years have brought a dizzying
transformation in how people communicate, and with it a raft of
public policy issues. Social-media platforms, as well as other
websites, have gone from unheard-of to inescapable. They structure
how we relate to family and friends, as well as to businesses,
civic organizations, and governments. The novel services they offer
make our lives better, and make them worse—create unparalleled
opportunities and unprecedented 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
legislatures and agencies. And those government actors will
generally be better positioned than courts to respond to the
emerging challenges social-media entities pose.

															But courts still have a necessary role in
protecting those entities’ rights of speech, as courts have
historically protected 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
compilations 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 select and shape
other parties’ expression into their own curated 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,
government efforts to alter an edited compilation of third-party
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,
restrict the ability of social-media platforms to control whether
and how third-party posts are presented to other users. Or
otherwise put, the laws limit the platforms’ capacity to 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 addressed in this Court, the laws require
a platform to provide an individualized explanation to a user if it
removes or alters her posts. NetChoice, an internet trade
association, challenged both laws on their face—as a whole, rather
than as to particular applications. The cases come to us at an
early stage, on 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 challenge,
that could well matter, even when the challenge is brought under
the First Amendment. As explained below, the question in such a
case is whether a law’s unconstitutional applications are
substantial compared to its constitutional ones. To make that
judgment, a court must determine a law’s full set of applications,
evaluate which are constitutional and which are not, and compare
the one to the other. Neither court performed that necessary
inquiry.

															To do that right, of course, a court must
understand what kind of government actions the First Amendment
prohibits. We therefore set out the relevant constitutional
principles, and explain how one of the Courts of Appeals failed to
follow them. Contrary to what the Fifth Circuit thought, the
current record indicates that the Texas law does regulate speech
when applied in the way the parties focused on below—when applied,
that is, to prevent Facebook (or YouTube) from using its
content-moderation standards to remove, alter, organize,
prioritize, or disclaim posts in its News Feed (or homepage). The
law then prevents exactly the kind of editorial 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 unlikely 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 conservative 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 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
platforms” typically refers to websites and mobile apps that allow
users to upload content—messages, pictures, videos, and so on—to
share with others. Those viewing the content can then react to it,
comment on it, or share it themselves. The biggest social-media
companies—entities like Facebook and YouTube—host a staggering
amount of content. 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 Standards and
Community Guidelines. Those rules list the subjects or messages the
platform prohibits or discourages—say, pornography, hate speech, or
misinformation on select topics. The rules thus lead Facebook and
YouTube to remove, disfavor, or label various posts based on their
content.

															In 2021, Florida and Texas enacted statutes
regulating internet platforms, including the large social-media
companies just mentioned. The States’ laws differ in the entities
they cover and the activities they limit. But both contain
content-moderation provisions, restricting covered platforms’
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 defined 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).[ 2 ] The statute restricts varied 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 content of its publication or broadcast.” §501.2041(2)(j).
Similarly, the law prevents deprioritizing posts by or about
political candidates. See §501.2041(2)(h). And the law requires
platforms to apply their content-moderation practices to users “in
a consistent manner.” §501.2041(2)(b).

															In addition, the Florida law mandates that a
platform provide an explanation to a user any time it removes or
alters any of her posts. See §501.2041(2)(d)(1). The requisite
notice must be delivered within seven days, and contain both a
“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, having over 50 million monthly active users, that allows
its users “to communicate with other users for the primary purpose
of posting information, comments, messages, or images.” Tex. Bus.
& Com. Code Ann. §§120.001(1), 120.002(b) (West Cum. Supp.
2023).[ 3 ] With several
exceptions, 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), 143 A. 006 (West Cum. Supp.
2023). That ban on “censor[ing]” covers any action to “block, ban,
remove, deplatform, demonetize, de-boost, restrict, deny equal
access or visibility to, or otherwise discriminate against
expression.” §143A.001(1). The statute also requires that
“concurrently with the removal” of user content, the platform shall
“notify the user” and “explain the reason the content was removed.”
§120.103(a)(1). The user gets a right of appeal, and the platform
must address an appeal within 14 days. See §§120.103(a)(2),
120.104.

															Soon after Florida and Texas enacted those
statutes, NetChoice LLC and the Computer & Communications
Industry Association (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, halting the laws’
enforcement. See 546 F. Supp. 3d 1082, 1096 (ND Fla. 2021);
573 F. Supp. 3d 1092, 1117 (WD Tex. 2021). Each court held
that the suit before it is likely to succeed because the statute
infringes on the constitutionally protected “editorial judgment” of
NetChoice’s members about what material they will display. See 546
F. Supp. 3d, at 1090; 573 F. Supp. 3d, at 1107.

															The Eleventh Circuit upheld the injunction of
Florida’s law, as to all provisions relevant here. The court held
that the State’s restrictions on content moderation trigger First
Amendment scrutiny under this Court’s cases protecting “editorial
discretion.” 34 F. 4th 1196, 1209, 1216 (2022). When a
social-media platform “removes or deprioritizes a user or post,”
the court explained, it makes a “judgment rooted in the platform’s
own views about the sorts of content and viewpoints that are
valuable and appropriate for dissemination.” Id. , at 1210.
The court concluded that the content-moderation provisions are
unlikely to survive “intermediate—let alone strict—scrutiny,”
because a State has no legitimate interest in counteracting
“private ‘censorship’ ” by “tilt[ing] public debate in a
preferred direction.” Id. , at 1227–1228. Similarly, the
Eleventh Circuit thought the statute’s individualized-explanation
requirements likely to fall. Applying the standard from Zauderer v. 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 reversed the preliminary injunction before it. In that
court’s view, the platforms’ content-moderation activities are “not
speech” at all, and so do not implicate the First Amendment. 49
F. 4th 439, 466, 494 (2022). But even if those activities were
expressive, the court continued, the State could regulate them to
advance its interest in “protecting a diversity of ideas.” Id. , at 482 (emphasis deleted). The court further held that
the statute’s individualized- explanation provisions would likely
survive, again even assuming that the platforms were engaged in
speech. Those requirements, the court maintained, are not unduly
burdensome under Zauderer because the platforms needed only
to “scale up” a “complaint-and-appeal process” they already used.
49 F. 4th, at 487.

															We granted certiorari to resolve the split
between the Fifth and Eleventh Circuits. 600 U. S. ___
(2023).

															II

															NetChoice chose to litigate these cases as
facial challenges, and that decision comes at a cost. For a host of
good reasons, courts usually handle constitutional claims case by
case, not en masse. See Washington State Grange v. Washington State Republican Party , 552
U.S. 442 , 450–451 (2008). “Claims of facial invalidity often
rest on speculation” about the law’s coverage and its future
enforcement. Id. , at 450. And “facial challenges threaten to
short circuit the 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 v. Salerno , 481 U.S.
739 , 745 (1987); Washington State Grange , 552
U. S., at 449. In First Amendment cases, however, this Court
has lowered that very high bar. To “provide[ ] breathing room
for free expression,” we have substituted a less demanding though
still rigorous standard. United States v. Hansen , 599
U.S. 762, 769 (2023). The question is whether “a substantial number
of [the law’s] applications are unconstitutional, judged in
relation to the statute’s plainly legitimate sweep.” Americans
for Prosperity Foundation v. Bonta , 594 U.S. 595, 615
(2021); see Hansen , 599 U. S., at 770 (likewise asking
whether the law “prohibits a substantial amount of protected speech
relative to its plainly legitimate sweep”). So in this singular
context, even a law with “a plainly legitimate sweep” may be struck
down in its entirety. But that is so only if the law’s
unconstitutional applications substantially outweigh its
constitutional ones.

															So far in these cases, no one has paid much
attention to that issue. In the lower courts, NetChoice and the
States alike treated the laws as having certain heartland
applications, 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 platforms use
on their best-known services to filter, alter, or label 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 34
F. 4th, at 1210, 1213 (considering “platforms like Facebook,
Twitter, YouTube, and TikTok” and content moderation in “viewers’
feeds”); 49 F. 4th, at 445, 460, 478, 492 (considering
platforms “such as Facebook, Twitter, and YouTube” and referencing
users’ feeds); see also id. , at 501 (Southwick, J.,
concurring in part and dissenting in part) (analyzing a curated
feed). On their way to opposing conclusions, they concentrated on
the same issue: whether a state law can regulate the
content-moderation practices used in Facebook’s News Feed (or near
equivalents). They did not address the full range of activities the
laws cover, and measure the constitutional against the
unconstitutional applications. In short, they treated these cases
more like as-applied claims than like facial ones.

															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
differ one from the other. But both, at least on their face, appear
to apply beyond Facebook’s News Feed and its ilk. Members of this
Court asked some of the relevant questions at oral argument.
Starting with Facebook and the other giants: To what extent, if at
all, do the laws affect their other services, like direct messaging
or events management? See 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 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’ financial exchanges,
or how a ride-sharing service like Uber runs? See Tr. of Oral Arg.
in No. 22–277, at 74–79, 95–98; see also id. , at 153
(Solicitor General) (“I have some sympathy [for the Court] here. In
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 complex, encompassing an ever-growing number of apps, services,
functionalities, and methods for communication and connection. Each
might (or might not) have to change because of the provisions, as
to either content moderation or individualized explanation, in
Florida’s or Texas’s law. Before a court can do anything else with
these facial challenges, it must address that set of issues—in
short, must “determine what [the law] covers.” Hansen , 599
U. S., at 770.

															The next order of business is to decide which of
the laws’ applications violate the First Amendment, and to measure
them against the rest. For the content-moderation provisions, 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 disclosures unduly burden expression. See Zauderer , 471 U. S., at 651. Even on a preliminary
record, it is not hard to see how the answers might differ as
between regulation of Facebook’s News Feed (considered in the
courts below) and, say, its direct messaging service (not so
considered). Curating 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. If
so, regulation of those diverse activities could well fall on
different sides of the constitutional line. To decide the facial
challenges here, the courts below must explore the laws’ full range
of applications—the constitutionally impermissible and permissible
both—and compare the two sets. Maybe the parties treated the
content-moderation choices reflected in Facebook’s News Feed and
YouTube’s homepage as the laws’ heartland applications because they are the principal things regulated, and should have just
that weight in the facial analysis. Or maybe not: Maybe the
parties’ focus had all to do with litigation strategy, and there is
a sphere of other applications—and constitutional ones—that would
prevent the laws’ facial invalidation.

															The problem for this Court is that it cannot
undertake the needed inquiries. “[W]e are a court of review, not of
first view.” Cutter v. Wilkinson , 544 U.S.
709 , 718, n. 7 (2005). Neither the Eleventh Circuit nor
the Fifth Circuit performed the facial analysis in the way just
described. And even were we to ignore the value of other courts
going first, we could not proceed very far. The parties have not
briefed the critical issues here, and the record is underdeveloped.
So we vacate the decisions below and remand these cases. That will
enable the lower courts to consider the scope of the laws’
applications, and weigh the unconstitutional as against the
constitutional ones.

															III

															But it is necessary to say more about how the
First Amendment relates to the laws’ content-moderation provisions,
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.
49 F. 4th, at 494; see supra , at 8. And even if those
activities were expressive, 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 Amendment
difficulties. But that conclusion would rest on a serious
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 expression. And the court was wrong to
treat as valid Texas’s interest in changing the content of the
platforms’ feeds. Explaining why that is so will prevent the Fifth
Circuit from repeating its errors as to Facebook’s and YouTube’s
main feeds. (And our analysis of Texas’s law may also aid the
Eleventh Circuit, which saw the First Amendment issues much as we
do, when next considering NetChoice’s facial challenge.) But a
caveat: Nothing said here addresses any of the laws’ other
applications, which may or may not share the First Amendment
problems described below.[ 4 ]

															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 discard or
downplay. The platforms object that the law thus forces them to
alter the content of their expression—a particular 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 question whether ordering a party to
provide a forum for someone 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 precedents
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 required a newspaper to give a
political candidate a right to reply when it published “criticism
and attacks on his record.” Id. , at 243. The Court held the
law to violate the First Amendment because it interfered with the
newspaper’s “exercise of editorial control and judgment.” Id. , at 258. Forcing the paper to print what “it would not
otherwise print,” the Court explained, “intru[ded] into the
function of editors.” Id. , at 256, 258. For that function
was, first and foremost, to make decisions about the “content of
the paper” and “[t]he choice of material to go into” it. Id. , at 258. In protecting that right of editorial control,
the Court recognized a 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 manipulation of the speech
market. Florida, the Court explained, could not substitute
“governmental regulation” for the “crucial process” of editorial
choice. Id. , at 258.

															Next up was Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U.S.
1 (1986) ( PG&E ), which the Court thought to follow
naturally from Tornillo . See 475 U. S., at 9–12
(plurality opinion); id. , at 21 (Burger, C. J.,
concurring). A private utility in California regularly put a
newsletter in its billing envelopes expressing its views of energy
policy. The State directed it to include as well material from a
consumer-advocacy group giving a different perspective. The utility
objected, and the Court held again that the interest in “offer[ing]
the public a greater variety of views” could not justify the
regulation. Id. , at 12. California was compelling the
utility (as Florida had compelled a newspaper) “to carry speech
with which it disagreed” and thus to “alter its own message.” Id. , at 11, n. 7, 16.

															In Turner Broadcasting System, Inc. v. FCC , 512 U.S.
622 (1994) ( Turner I ), the Court further
underscored the 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
stations. The Court had no doubt that the First Amendment was
implicated, because the operators were engaging in expressive
activity. They were, the Court explained, “exercising 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 content into a single speech product (the
operators’ “repertoire” of programming) is itself expressive, and
intrusion into that activity must be specially justified under the
First Amendment.

															The capstone of those precedents came in Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, Inc. , 515 U.S.
557 (1995), when the Court considered (of all things) a parade.
The question was whether Massachusetts could require the organizers
of a St. Patrick’s Day parade to admit as a participant a gay and
lesbian group seeking to convey a message of “pride.” Id. ,
at 561. The Court held unanimously that the First Amendment
precluded that compulsion. The “selection of contingents to make a
parade,” it explained, is entitled to First Amendment protection,
no less than a newspaper’s “presentation of an edited compilation
of [other persons’] speech.” Id. , at 570 (citing Tornillo , 418 U. S., at 258). And that meant the State
could not tell the parade organizers whom to include. Because
“every participating unit affects the message,” said the Court,
ordering the group’s admittance would “alter the expressive content
of the[ ] parade.” Hurley , 515 U. S., at 572–573.
The parade’s organizers had “decided to exclude a message [they]
did not like from the communication [they] chose to make,” and that
was their decision alone. Id. , at 574.

															On two other occasions, the Court distinguished Tornillo and its progeny for the flip-side reason—because in
those cases the compelled access did not affect the
complaining party’s own expression. First, in PruneYard Shopping
Center v. Robins , 447 U.S.
74 (1980), the Court rejected a shopping mall’s First Amendment
challenge to a California law requiring it to allow members of the
public to distribute handbills on its property. The mall owner did
not claim that he (or the mall) was engaged in any expressive
activity. Indeed, as the PG&E Court later noted, he “did
not even allege that he objected to the content of the pamphlets”
passed out at the mall. 475 U. S., at 12. Similarly, in Rumsfeld v. Forum for Academic and Institutional Rights,
Inc. , 547 U.S.
47 (2006) ( FAIR ), the Court reiterated that a First
Amendment claim will not succeed when the entity objecting to
hosting third-party speech is not itself engaged in expression. The
statute at issue required law schools to allow the military to
participate in on-campus recruiting. The Court held that the
schools had no First Amendment right to exclude the military based
on its hiring policies, because the schools “are not speaking when
they host interviews.” Id. , at 64. Or stated again, with
reference to the just-described precedents: Because a “law school’s
recruiting services lack the expressive quality of a parade, a
newsletter, or the editorial page of a newspaper,” the required
“accommodation of a military recruiter[ ]” did not “interfere
with any message of the school.” Ibid. That is a slew of individual cases, so consider
three general points to wrap up. Not coincidentally, they will
figure in the upcoming discussion of the First Amendment problems
the statutes at issue here likely present as to Facebook’s News
Feed and similar products.

															First, the First Amendment offers protection
when an entity engaging in expressive activity, including compiling
and curating others’ speech, is directed to accommodate messages it
would prefer to exclude. “[T]he editorial function itself is an
aspect of speech.” Denver Area Ed. Telecommunications
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 v. Forbes , 523 U.S.
666 , 674 (1998). And that is as true when the content comes
from third parties as when it does not. (Again, think of a
newspaper opinion page or, if you prefer, a parade.) Deciding on
the third-party speech that will be included in or excluded from a
compilation—and then organizing and presenting the included
items—is expressive activity of its own. And that activity results
in a distinctive expressive product. When the government interferes
with such editorial choices—say, by ordering the excluded to be
included—it alters the content of the compilation. (It creates a
different opinion page or parade, bearing a different message.) And
in so doing—in overriding a private party’s expressive choices—the
government confronts the First Amendment.[ 5 ]

															Second, none of that changes just because a
compiler includes 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.” 515 U. S., at 562. Or otherwise said,
the organizers were “rather lenient in admitting participants.” Id. , at 569. No matter. A “narrow, succinctly articulable
message is not a condition of constitutional protection.” Ibid. It “is enough” for a compiler to exclude the handful
of messages it most “disfavor[s].” Id. , at 574. Suppose, for
example, that the newspaper in Tornillo had granted a right
of reply to all but one candidate. It would have made no
difference; the Florida statute still could not have altered the
paper’s policy. Indeed, that kind of focused editorial choice packs
a peculiarly powerful expressive punch.

															Third, the government cannot get its way just by
asserting an interest in improving, or better balancing, the
marketplace of ideas. Of course, it is critically important to have
a well-functioning sphere of expression, in which citizens have
access to information from many sources. That is the whole project
of the First Amendment. And the government can take varied
measures, like enforcing competition 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 rejigger the
expressive realm. The regulations in Tornillo , PG&E , and Hurley all were thought to promote
greater diversity of expression. See supra , at 14–16. They
also were thought to counteract advantages some private parties
possessed in controlling “enviable vehicle[s]” for speech. Hurley , 515 U. S., at 577. Indeed, the Tornillo Court devoted six pages of its opinion to recounting a critique of
the then-current media environment—in particular, the
disproportionate “influen[ce]” of a few speakers—similar to one
heard today (except about different entities). 418 U. S., at
249; see id. , at 248–254; supra , at 14–15. It made no
difference. However imperfect the private marketplace of ideas,
here was a worse proposal—the government itself deciding when
speech was imbalanced, and then coercing speakers to provide more
of some views or less of others.

															B

															“[W]hatever the challenges of applying the
Constitution to ever-advancing technology, the basic principles” of
the First Amendment “do not vary.” Brown v. Entertainment
Merchants Assn. , 564 U.S.
786 , 790 (2011). New communications media differ from old ones
in a host of ways: No one thinks Facebook’s News Feed much
resembles an insert put in a billing envelope. And similarly,
today’s social media pose dangers not seen earlier: No one ever
feared the effects of newspaper opinion pages on adolescents’
mental health. But analogies to old media, even if imperfect, can
be useful. And better still as guides to decision are settled
principles about freedom of expression, including the ones just
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 applications that must now be considered. See supra , at 12. But in reviewing the District Court’s
preliminary injunction, 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 uninitiated,
though, each of those feeds presents a user with a continually
updating stream of other users’ posts. For Facebook’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 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
platforms write algorithms to implement those standards—for
example, to prefer content deemed particularly trustworthy or to
suppress content viewed as deceptive (like videos promoting
“conspiracy theor[ies]”). Id. , at 113a.

															Beyond rankings lie labels. The platforms may
attach “warning[s], disclaimers, or general commentary”—for
example, 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 information is not enough; instead, removing a post is the
right course. The platforms’ content-moderation policies also say
when that is so. Facebook’s Standards, for example, proscribe
posts—with exceptions for “newsworth[iness]” and other “public
interest value”—in categories and subcategories including: Violence
and Criminal Behavior ( e.g. , violence and incitement,
coordinating harm and publicizing crime, fraud and deception);
Safety ( e.g. , suicide and self-injury, sexual exploitation,
bullying and harassment); Objectionable Content ( e.g. , hate
speech, violent and graphic content); Integrity and Authenticity
( e.g. , false news, manipulated media). Id. , at
412a–415a, 441a–442a. YouTube’s 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 unabashedly control the content that will appear to
users, exercising authority to remove, label or demote messages
they disfavor.[ 6 ]

															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 [ 7 ]) from
“censor[ing]” a “user’s expression” based on its “viewpoint.”
§143A.002(a)(2); see supra , at 7. The law defines
“expression” 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 otherwise discriminate
against expression.” §143A.001(1).[ 8 ] 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 post’s
viewpoint.[ 9 ] 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.[ 10 ] The point of it is not that the
speech environment created by Texas’s law is worse than the ones to
which the major platforms aspire on their main feeds. The point is
just that Texas’s law profoundly alters the platforms’ choices
about the views they will, and will not, convey.

															And we have time and again held that type of
regulation to interfere with protected speech. Like the editors,
cable operators, and parade organizers this Court has previously
considered, the major social-media platforms are in the business,
when curating their feeds, of combining “multifarious voices” to
create a distinctive expressive offering. Hurley , 515
U. S., at 569. The individual messages may originate with
third parties, but the larger offering is the platform’s. It is the
product of a wealth of choices about whether—and, if so, how—to
convey posts having a certain content or 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
“decisions made [as to] content,” the “treatment of public
issues”—“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) targets
those expressive choices—in particular, by forcing the major
platforms to present and promote content on their feeds that they
regard as objectionable.

															That those platforms happily convey the lion’s
share of posts submitted to them makes no significant First
Amendment 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 almost 9
million pieces of “bullying and harassment content.” App. in No.
22–555, at 80a. Similarly, YouTube deleted in one quarter more than
6 million videos violating its Guidelines. See id. , at 116a.
And among those are the removals the Texas law targets. What is
more, this Court has already rightly declined to focus on the ratio
of rejected to accepted content. Recall that in Hurley , the
parade organizers 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 “particularized
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 differ. That Facebook and
YouTube convey a mass of messages does not license Texas to
prohibit them from deleting posts with, say, “hate speech” based on
“sexual orientation.” App. in No. 22–555, at 126a, 155a; see id. , at 431a. It is as much an editorial choice to convey
all speech except in select categories as to convey only speech
within them.

															Similarly, the major social-media platforms do
not lose their First Amendment protection just because no one will
wrongly attribute to them the views in an individual post. Contra,
49 F. 4th, at 462 (arguing otherwise). For starters, users may
well attribute to the platforms the messages that the posts convey in toto . Those messages—communicated by the feeds as a
whole—derive largely from the platforms’ editorial decisions about
which posts to remove, label, or demote. And because that is so,
the platforms may indeed “own” the overall speech environment. In
any event, this Court has never hinged a compiler’s First Amendment
protection on the risk of misattribution. The Court did not think
in Turner —and could not have thought in Tornillo or PG&E —that anyone would view the entity conveying the
third-party speech at issue as endorsing its content. See Turner
I , 512 U. S., at 655 (“[T]here appears little risk” of
such misattribution). Yet all those entities, the Court held, were
entitled to First Amendment protection for refusing to carry the
speech. See supra , at 14–16. To be sure, the Court noted in PruneYard and FAIR , when denying such protection,
that there was little prospect of misattribution. See 447
U. S., at 87; 547 U. S., at 65. But the key fact in those
cases, as noted above, was that the host of the third-party speech
was not itself engaged in expression. See supra , at 16–17.
The current record suggests the opposite as to Facebook’s News Feed
and YouTube’s homepage. When the platforms use their Standards and
Guidelines to decide which third-party content those feeds will
display, or how the display will be ordered and organized, they are
making expressive choices. And because that is true, they receive
First Amendment protection.

															C

															And once that much is decided, the interest
Texas relies on cannot sustain its law. In the usual First
Amendment case, we must decide whether to apply strict or
intermediate scrutiny. But here we need not. Even assuming that the
less stringent form of First Amendment review applies, Texas’s law
does not pass. 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 (1968). Many possible interests relating to social
media can meet that test; nothing said here puts regulation of
NetChoice’s members off-limits as to a whole array of subjects. But
the interest Texas has asserted cannot carry the day: It is very
much related to the suppression of free expression, and it is not
valid, let alone substantial.

															Texas has never been shy, and always been
consistent, about its interest: The objective is to correct the mix
of speech that the major social-media platforms present. In this
Court, Texas described its law as “respond[ing]” to the 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] enactment”). The large
social-media platforms throw out (or encumber) certain messages;
Texas wants them kept in (and free from encumbrances), because it
thinks that would create a better speech balance. The current
amalgam, the State explained in earlier briefing, was “skewed” to
one side. 573 F. Supp. 3d, at 1116. And that assessment
mirrored the stated views of those who enacted the law, save that
the latter had a bit more color. The law’s main sponsor explained
that the “West Coast oligarchs” who ran social-media companies were
“silenc[ing] conservative viewpoints and ideas.” Ibid. The
Governor, in signing the legislation, echoed the point: The
companies were fomenting a “dangerous movement” to “silence”
conservatives. Id. , at 1108; see id. , at 1099
(“[S]ilencing conservative views is un- American, it’s un-Texan and
it’s about to be illegal in Texas”).

															But a State may not interfere with private
actors’ speech to advance its own vision of ideological balance.
States (and their citizens) are of course right to want an
expressive realm in which the public has access to a wide range of
views. That is, indeed, a fundamental aim of the First Amendment.
But the way the First Amendment achieves that goal is by preventing the government from “tilt[ing] public debate in a preferred
direction.” Sorrell v. IMS Health Inc. , 564 U.S.
552 , 578–579 (2011). It is not by licensing the government to
stop private actors from speaking as they wish and
preferring some views over others. And that is so even when those
actors possess “enviable vehicle[s]” for expression. Hurley ,
515 U. S., at 577. In a better world, there would be fewer
inequities in speech opportunities; and the government can take
many steps to bring that world closer. But it cannot prohibit
speech to improve or better balance the speech market. On the
spectrum of dangers to free expression, there are few greater than
allowing the government to change the speech of private actors in
order to achieve its own conception of speech nirvana. That is why
we have said in so many contexts that the government may not
“restrict the speech of some elements of our society in order to
enhance the relative voice of others.” Buckley v. Valeo , 424 U.S.
1 , 48–49 (1976) ( per curiam ). That unadorned interest is
not “unrelated to the suppression of free expression,” and the
government may not pursue it consistent with the First
Amendment.

															The Court’s decisions about editorial control,
as discussed earlier, make that point repeatedly. See supra ,
at 18–19. Again, the question those cases had in common was whether
the government could force a private speaker, including a compiler
and curator of third-party speech, to convey views it disapproved.
And in most of those cases, the government defended its regulation
as yielding greater balance in the marketplace of ideas. But the
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 parade organizer—whether acting “fair[ly] or
unfair[ly]”—could exclude the unwanted message, free from
government interference. Tornillo , 418 U. S., at 258;
see United States Telecom Assn. v. FCC , 855 F.3d
381, 432 (CADC 2017) (Kavanaugh, J., dissenting from denial of
rehearing en banc) (“[E]xcept in rare circumstances, the First
Amendment does not allow the Government to regulate the content
choices of private editors just so that the Government may enhance
certain voices and alter the content available to the
citizenry”).[ 11 ]

															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 preventing
“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
prohibited goal. The reason Texas is regulating the content-
moderation policies that the major platforms use for their feeds is
to change the speech that will be displayed there. Texas does not
like the way those platforms are selecting and moderating content,
and wants them to create a different expressive product,
communicating different values and priorities. But under the First
Amendment, that is a preference Texas may not impose.

															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) “prohibits 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 Amendment context, facial
challenges are disfavored, and neither parties nor courts can
disregard the requisite inquiry into how a law works in all of its
applications. So on remand, each court must evaluate the full scope
of the law’s coverage. It must then decide which of the law’s
applications are 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 influencing 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 because it would prefer a different mix of
messages. How that matters for the requisite facial analysis is for
the Fifth Circuit to decide. But it should conduct that analysis in
keeping with two First Amendment precepts. First, presenting a
curated and “edited compilation of [third party] speech” is itself
protected speech. Hurley , 515 U. S., at 570. And
second, a State “cannot advance some points of view by burdening
the expression of others.” PG&E , 475 U. S., at 20.
To give government that power is to enable it to control the
expression of ideas, promoting those it favors and suppressing
those it does not. And that is what the First Amendment protects
all of us from.

															We accordingly vacate the judgments of the
Courts of Appeals for the Fifth and Eleventh Circuits and remand
the cases for further proceedings consistent with this opinion.

															It is so ordered. Notes 1 *Justice Jackson joins Parts I,
II, and III–A of this opinion. 2 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). 3 The statute further
clarifies that it does not cover internet service providers, email
providers, and any online service, website, or app consisting
“primarily of news, sports, entertainment, or other information or
content that is not user generated but is preselected by the
provider.” §120.001(1). 4 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 v. Office of Disciplinary Counsel of Supreme
Court of Ohio , 471 U.S.
626 , 651 (1985); supra , at 11. So our explanation of why
Facebook and YouTube are engaged in expression when they make
content-moderation choices in their main feeds should inform the
courts’ further consideration of that issue. 5 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. 6 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
(Barrett, J., concurring). Like them or loathe them, the Community
Standards and Community Guidelines make a wealth of user-agnostic
judgments about what kinds of speech, including what viewpoints,
are not worthy of promotion. And those judgments show up in
Facebook’s and YouTube’s main feeds. 7 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
solicitor general at oral argument stated that he understood the
law to cover Facebook and YouTube, but “d[id]n’t know” whether it
also covered other platforms and applications. Tr. of Oral Arg. in
No. 22–555, pp. 61–62. 8 In addition to barring
“censor[ship]” of “expression,” the law bars “censor[ship]” of
people. More specifically, it prohibits taking the designated
“censor[ial]” actions against any “user” based on his “viewpoint,”
regardless of whether that “viewpoint is expressed on a social
media platform.” §§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. 9 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. 10 Details on both the enumerated
examples and similar ones are found in Facebook’s Community
Standards and YouTube’s Community Guidelines. See
https://transparency.meta.com/policies/community-standards;
https://support.google.com/youtube/answer/9288567. 11 Texas
claims Turner as a counter-example, but that decision offers
no help to speak of. Turner did indeed hold that the FCC’s
must-carry provisions, requiring cable operators to give some of
their channel space 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”
disseminated 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 competition policy: The FCC needed
to limit the cable operators’ “monopolistic,” gatekeeping position
“in order to allow for the survival of broadcasters.” 515
U. S., at 577. Unlike in regulating the parade—or here in
regulating Facebook’s News Feed or YouTube’s homepage—the
Government’s interest was “not the alteration of speech.” Ibid . And when that is so, the prospects of permissible
regulation are entirely different. 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]

															Justice Jackson, concurring in part and
concurring in the judgment.

															These cases present a complex clash between two
novel state laws and the alleged First Amendment rights of several
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 regulation 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 evaluate whether the challenged state laws are facially
valid.

															That is in no small part because, as all Members
of the Court acknowledge, plaintiffs bringing a facial challenge
must clear a high bar. See ante, at 9–10 (majority opinion); post , at 13–14 (Alito, J., concurring in judgment). The
Eleventh Circuit failed to appreciate the nature of this challenge,
and the Fifth Circuit did not adequately evaluate it. That said, I
agree with Justice Barrett that the Eleventh Circuit at least
fairly stated our First Amendment precedent, whereas the Fifth
Circuit did not. See ante , at 1 (concurring 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
companies) or a particular entity (like Facebook) is generally
engaged 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. v. FCC , 395 U.S.
367 , 386 (1969) (positing that “differences in the
characteristics of new media justify differences in the First
Amendment standards applied to them”). Even when evaluating a broad
facial challenge, courts must make sure they carefully parse not
only what entities are regulated, but how the regulated activities actually function before deciding if the activity in
question constitutes expression and therefore comes within the
First Amendment’s ambit. See Brief for Knight First Amendment
Institute at Columbia University as Amicus Curiae 11–12.
Thus, further factual development may be necessary before either of
today’s challenges can be fully and fairly addressed.

															In light of the high bar for facial challenges
and the state of these cases as they come to us, I would not go on
to treat either like an as-applied challenge and preview our
potential ruling on the merits. Faced with difficult constitutional
issues arising in new contexts on undeveloped records, this Court
should strive to avoid deciding more than is necessary. See Ashwander v. TVA , 297 U.S.
288 , 346–347 (1936) (Brandeis, J., concurring). In my view,
such restraint is warranted today. 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]

															Justice Thomas, concurring in the
judgment.

															I agree with the Court’s decision to vacate and
remand because NetChoice and the Computer and Communications
Industry Association (together, the trade associations) have not
established that Texas’s H. B. 20 and Florida’s S. B.
7072 are facially unconstitutional.

															I cannot agree, however, with the Court’s
decision to opine on certain applications of those statutes. The
Court’s discussion is unnecessary to its holding. See Jama v. Immigration 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
performing. It faults the Courts of Appeals for focusing on only
one subset of applications, rather than determining whether each
statute’s “full range of applications” are constitutional. 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
“underdeveloped,” ante, at 12, 20, and by sidestepping
several pressing factual and legal questions, see post , at
29–32 (Alito, J., concurring in judgment). As Justice Alito
explains, the Court’s approach is both unwarranted and mistaken.
See ibid .

															I agree with Justice Alito’s analysis and join
his opinion in full. I write separately to add two observations on
the merits and to highlight a more fundamental jurisdictional
problem. The trade associations have brought facial challenges
alleging that H. B. 20 and S. B. 7072 are
unconstitutional 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.”
Accordingly, 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” unconstitutional.

															I

															As Justice Alito explains, the trade
associations have failed to provide many of the basic facts
necessary to evaluate 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 , 471 U.S.
626 (1985), applies. See ante , at 11. In that case, the
Court held that laws requiring the disclosure of factual
information in commercial advertising may satisfy the First
Amendment if the disclosures are “reasonably related” to the
Government’s interest in preventing consumer deception. 471
U. S., at 651. Because the trade associations did not contest Zauderer ’s applicability before the Eleventh Circuit and
both lower courts applied its framework, I agree with the Court’s
decision to rely upon Zauderer at this stage. However, I
think we should reconsider Zauderer and its progeny. “I am
skeptical of the premise on which Zauderer rests—that, in
the commercial-speech context, the First Amendment interests
implicated by disclosure requirements are substantially weaker than
those at stake when speech is actually suppressed.” Milavetz,
Gallop & Milavetz, P. A. v. United States , 559 U.S.
229 , 255 (2010) (Thomas, J., concurring in part and concurring
in judgment) (internal quotation marks omitted).

															Second, the common-carrier doctrine should
continue to guide the lower courts’ examination of the trade
associations’ claims on remand. See post , at 18, and
n. 17, 30 (opinion of Alito, J.). “[O]ur legal system and its
British predecessor have long subjected certain businesses, known
as common carriers, to special regulations, including a general
requirement to serve all comers.” Biden v. Knight First
Amendment Institute at Columbia Univ. , 593 U. S. ___, ___
(2021) (Thomas, J., concurring in grant of certiorari) (slip op.,
at 3). Moreover, “there is clear historical precedent for
regulating transportation and communications networks in a similar
manner as traditional common carriers” given their many
similarities. Id ., at ___ (slip op., at 5). Though they
reached different conclusions, both the Fifth Circuit and the
Eleventh Circuit appropriately strove to apply the common-carrier
doctrine in assessing the constitutionality of H. B. 20 and
S. B. 7072 respectively. See 49 F. 4th 439, 469–480 (CA5
2022); NetChoice v. Attorney Gen., Fla ., 34
F. 4th 1196, 1219–1222 (CA11 2022).

															The common-carrier doctrine may have weighty
implications for the trade associations’ claims. But, the same
factual barriers that preclude the Court from assessing the trade
associations’ claims under our First Amendment precedents also
prevent us from applying the common-carrier 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
considerable hurdles that currently preclude resolution of the
trade associations’ claims. See ante, at 9–10; ante ,
at 1–4 (Barrett, J., concurring); post , at 22–32 (opinion of
Alito, 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 regulate 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 , 576 U.S.
409 , 415 (2015).

															Facial challenges are fundamentally at odds with
Article III. Because Article III limits federal courts’ judicial
power to cases or controversies, federal courts “lac[k] the power
to pronounce that [a] statute is unconstitutional” as applied to
nonparties. Americans for Prosperity Foundation v. Bonta , 594 U.S. 595, 621 (2021) (Thomas, J., concurring in
part and concurring in judgment) (internal quotation marks
omitted). Entertaining facial challenges in spite of that
limitation arrogates powers reserved to the political branches and
disturbs the relationship between the Federal Government and the
States. The practice of adjudicating facial challenges creates
practical concerns as well. Facial challenges’ dubious historical
roots further confirm that the doctrine should have no place in our
jurisprudence.

															A

															1

															Article III empowers federal courts to
exercise “judicial Power” only over “Cases” and “Controversies.”
This Court has long recognized that those terms impose substantive
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 , 523 U.S.
83 , 102 (1998). One corollary of the case-or-controversy
requirement is that while federal courts can judge the
constitutionality of statutes, they may do so only to the extent
necessary to resolve the case at hand. “It is emphatically the
province and duty of the judicial department to say what the law
is,” but only because “[t]hose who apply the rule to particular
cases, must of necessity expound and interpret that rule.” Marbury v. Madison , 1 Cranch 137, 177 (1803); see Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration , 113 U.S.
33 , 39 (1885) (“[The Court] has no jurisdiction to pronounce
any statute . . . irreconcilable with the Constitution,
except as it is called upon to adjudge the legal rights of
litigants in actual controversies”). Accordingly, “[e]xcept when
necessary” to resolve a case or controversy, “courts have no
charter to review and revise legislative and executive action.” Summers v. Earth Island Institute , 555 U.S.
488 , 492 (2009); see United States v. Raines , 362 U.S.
17 , 20–21 (1960).

															These limitations on the power of judicial
review play an essential role in preserving our constitutional
structure. Our Constitution sets forth a “tripartite allocation of
power,” separating different types of powers across three co-equal
branches. DaimlerChrysler Corp. v. Cuno , 547 U.S.
332 , 341 (2006) (internal quotation marks omitted). “[E]ach
branch [is vested] with an exclusive form of power,” and “no branch
can encroach upon the powers confided to the others.” Patchak v. Zinke , 583 U.S. 244, 250 (2018) (plurality
opinion) (internal quotation marks omitted). In the Judicial
Branch’s case, it is vested with the “ultimate and supreme” power
of judicial review. Chicago & Grand Trunk R. Co. v. Wellman , 143 U.S.
339 , 345 (1892). That power includes the authority to refuse to
apply a statute enacted and approved by the other two branches of
the Federal Government. But, the power of judicial review can be
wielded only in specific circumstances and to limited ends—to
resolve cases and controversies. Without that limitation, the
Judiciary would have an unchecked ability to enjoin duly enacted
statutes. Respecting the case-or-controversy requirement is
therefore necessary to “preven[t] the Federal Judiciary from
intruding upon the powers given to the other branches, and
confin[e] the federal courts to a properly judicial role.” Town
of Chester v. Laroe Estates, Inc. , 581 U.S. 433, 438
(2017) (internal quotation marks and alteration omitted).

															2

															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 Constitution in
cases that are not before the court.

															To bring a facial challenge under our
precedents, a plaintiff must ordinarily “establish that no set of
circumstances exists under which the Act would be valid.” United
States v. Salerno , 481 U.S.
739 , 745 (1987). In the First Amendment context, we have
sometimes applied an even looser standard, called the overbreadth
doctrine. The overbreadth doctrine requires a plaintiff to
establish only that a statute “prohibits a substantial amount of
protected speech,” “relative to [its] plainly legitimate sweep.” United States v. Williams , 553
U.S. 285 , 292 (2008).

															Facial challenges ask courts to issue holdings
that are rarely, if ever, required to resolve a single case or
controversy. The only way a plaintiff gets into a federal court is
by showing that he “personally has suffered some actual or
threatened injury as a result of the putatively illegal conduct of
the defendant.” Blum v. Yaretsky , 457 U.S.
991 , 999 (1982) (internal quotation marks omitted). And, the
only remedy a plaintiff should leave a federal court with is one
“limited to the inadequacy that produced the injury in fact that
the plaintiff has established.” Lewis v. Casey , 518 U.S.
343 , 357 (1996). Accordingly, once a court decides whether a
statute can be validly enforced against the plaintiff who
challenges it, that case or controversy is resolved. Either the
court remedies the plaintiff ’s injury, or it determines that
the statute may be constitutionally applied to the plaintiff.

															Proceeding to decide the merits of possible
constitutional challenges that could be brought by other plaintiffs is not necessary to resolve that case. Instead, any
holding with respect to potential future plaintiffs would be “no
more than an advisory opinion—which a federal court should never
issue at all, and especially should not issue with regard to
a constitutional question, as to which we seek to avoid even non advisory opinions.” Chicago v. Morales , 527 U.S.
41 , 77 (1999) (Scalia, J., dissenting) (citation omitted).

															Unsurprisingly, facial challenges are at odds
with doctrines enforcing the case-or-controversy requirement.
Pursuant 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. , 523 U. S., at 103. Facial challenges
significantly relax those rules. Start with the injury requirement.
Facial challenges allow a plaintiff to challenge applications of a
statute that have not injured him. But see Acheson Hotels,
LLC v. Laufer , 601 U.S. 1, 10 (2023) (Thomas, J.,
concurring in judgment) (“To have standing, a plaintiff must assert
a violation of his [own] rights”). In fact, under our First
Amendment overbreadth doctrine, a plaintiff need not be injured at
all; he can challenge a statute that lawfully applies to him
so long as it would be unlawful to enforce it against others. See United States v. Hansen , 599 U.S. 762, 769
(2023).

															Facial challenges also distort standing
doctrine’s redressability requirement. The Court has held that a
plaintiff has standing to sue only when his “requested relief will
redress the alleged injury.” Steel Co. , 523 U. S., at
103. With a facial challenge, however, a plaintiff seeks to enjoin
every application of a statute—including ones that have nothing to
do with his injury. A plaintiff can ask, “Do [I] just want [the
court] to say that this statute cannot constitutionally be applied
to [me] in this case, or do [I] want to go for broke and try to get
the statute pronounced void in all its applications?” Morales , 527 U. S., at 77 (opinion of Scalia, J.). In
this sense, the remedy sought by a facial challenge is akin to a
universal injunction—a practice that is itself “inconsistent with
longstanding limits on equitable relief and the power of Article
III courts.” Trump v. Hawaii , 585 U.S. 667, 713
(2018) (Thomas, J., concurring); see Department of Homeland
Security v. New York , 589 U. S. ___, ___–___ (2020)
(Gorsuch, J., concurring in grant of stay) (slip op., at 2–3); FDA v. Alliance for Hippocratic Medicine , 602 U.S.
367, 402 (2024) (Thomas, J., concurring).

															Because deciding the constitutionality of a
statute as applied to nonparties is not necessary to resolve a case
or controversy, it is beyond a federal court’s constitutional
authority. Federal courts have “no power per se to review
and annul acts of Congress on the ground that they are
unconstitutional. That question may be considered only when the
justification for some direct injury suffered or threatened,
presenting a justiciable issue, is made to rest upon such an act.” Massachusetts v. Mellon , 262
U.S. 447 , 488 (1923). Resolving facial challenges thus violates
Article III.[ 1 ]

															3

															Adjudicating facial challenges also intrudes
upon powers reserved to the Legislative and Executive Branches and
the States. When a federal court decides an issue unnecessary for
resolving a case or controversy, the Judiciary assumes authority
beyond what the Constitution granted. Supra , at 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 ., 561 U.S.
477 , 500 (2010).

															Moreover, by exceeding their Article III powers,
federal courts risk interfering with the executive and legislative
functions. Facial challenges enable federal courts to review the
constitutionality of a statute in many or all of its
applications—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
constitutional role in lawmaking. When courts take on the
supervisory role of judging statutes in the abstract, they thus
“assume a position of authority over the governmental acts of
another and co-equal department, an authority which plainly [they]
do not possess.” Mellon , 262 U. S., at 489.

															Comparing the effects of as-applied challenges
and facial challenges makes this point clear. With an as-applied
challenge, the Judiciary intrudes only as much as necessary on the
will “ ‘of the elected representatives of the people.’ ” Washington State Grange v. Washington State Republican
Party , 552 U.S.
442 , 451 (2008). Assuming a court adheres to traditional
remedial limits, a successful as-applied challenge only prevents
application of the statute against that plaintiff. The Executive
Branch remains free to enforce the statute in all of its other
applications. And, the court’s decision provides some notice to the
political branches, enabling the Executive Branch to tailor future
enforcement of the statute to avoid violating the Constitution or
Congress to amend the statute.

															Facial challenges, however, force the Judiciary
to take a maximalist approach. A single plaintiff can immediately
call upon a federal court to declare an entire statute
unconstitutional, even before it has been applied to him. The
political branches have no opportunity to correct course, making
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 Constitution.” Ibid. In a similar vein, facial challenges distort the
relationship between the Federal Government and the States. The
Constitution “establishes a system of dual sovereignty between the
States and the Federal Government.” Gregory v. Ashcroft , 501 U.S.
452 , 457 (1991). The States retain all powers “not delegated”
to the Federal Government and not “prohibited by [the Constitution]
to the States.” Amdt. 10. Facial challenges can upset this division
by shifting power from the States to the Federal Judiciary. Most
obviously, when a state law is challenged, a facial challenge
prevents that State from applying its own statute in a
constitutional manner. But, facial challenges can also force
federal courts to appropriate the role of state courts. To analyze
whether a statute is valid on its face, a court must determine the
statute’s scope. If a state court has yet to determine the scope of
its statute (a common occurrence with facial challenges), the
federal court must do so in the first instance. Facial challenges
thus increase the likelihood that federal courts must interpret
novel state-law questions—a role typically and appropriately
reserved for state courts.

															B

															In addition to their constitutional
infirmities, facial challenges 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 “ ‘arbiters of legal questions presented and argued by the
parties before them.’ ” NASA v. Nelson , 562 U.S.
134 , 147, n. 10 (2011) (quoting Carducci v. Regan , 714 F.2d 171, 177 (CADC 1983) (opinion for the court
by Scalia, J.)). This system “assure[s] that the legal questions
presented to the court will be resolved . . . in a
concrete factual context conducive to a realistic appreciation of
the consequences of judicial action.” Valley Forge Christian
College v. Americans United for Separation of Church and
State, Inc. , 454 U.S.
464 , 472 (1982).

															Facial challenges disrupt the adversarial system
and increase the risk of judicial error as a result. A plaintiff
raising a facial challenge need not have any direct knowledge of
how the statute applies to others. In fact, since a facial
challenge may be brought before a statute has been enforced against
anyone, a plaintiff often can only guess how the statute
operates—even in his own case. For this reason, “[c]laims of facial
invalidity often rest on speculation,” Washington State
Grange , 552 U. S., at 450, and “factually barebones
records,” Sabri v. United States , 541 U.S.
600 , 609 (2004). Federal courts are often called to give
“premature interpretations of statutes in areas where their
constitutional application might be cloudy.” Raines , 362
U. S., at 22. In short, facial challenges ask courts to
resolve potentially thorny constitutional questions with little
factual background and briefing by a party who may not be affected
by the outcome.

															C

															The problems with facial challenges are
particularly evident in the two cases before us. Even though the
trade associations challenge two state laws, the state actors have
been left out of the picture. State officials had no opportunity to
tailor the laws’ enforcement. Nor could the legislatures 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 questions.” Washington State Grange , 552
U. S., at 450. Instead, 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 questionable 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 even simple fact patterns, a court
has little chance of determining 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 origins. 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 insofar as necessary to resolve a particular
case or controversy. See supra , at 5–6. The Founders were
certainly familiar 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 Revision, composed
of the Governor, Chancellor, and New York Supreme Court. See Hansen , 599 U. S., at 786 (Thomas, J., concurring). The
Council of Revision could object to “any measure of a [prospective]
bill” based on “not only [its] constitutionality . . .
but also [its] policy.” Id ., at 787. If the Council lodged
an objection, the Legislature’s only options were to “conform to
[the Council’s] objections, override them by a two-thirds vote of
both Houses, or simply let the bill die.” Ibid. (internal
quotation marks omitted).

															In our Constitution, the Founders refused to
create a 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 different
occasions. No other proposal was considered and rejected so many
times.” Id ., at 789 (citation omitted). Instead, the
Founders created a Judiciary with “only the 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 before their enactment.” Ibid .
(internal quotation marks omitted). Therefore, they refused to
enlist judges in the business of reviewing statutes other than “as
an issue for decision in a concrete case or controversy.”[ 3 ] Ibid .

															For more than a century following the founding,
the Court generally adhered to the original understanding of the
narrow scope of judicial review. When the Court first discussed the
concept of judicial review in Marbury v. Madison , it
made clear that such review is limited to what is necessary for
resolving “a particular cas[e]” before a court. 1 Cranch, at 177;
see also supra , at 5–6. And, in case after case that
followed Marbury , the Court reiterated that federal courts
have no authority to reach beyond the parties before them to
facially invalidate a statute.[ 4 ]

															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 , 576 U.S.
591 , 616–620 (2015) (Thomas, J., concurring in judgment)
(describing history of vagueness doctrine). Before and at the time
of the founding, American and English courts dealt with vague laws
by “simply refus[ing] to apply them in individual cases.” Id ., at 615. After the unfortunate rise of “substantive” due
process, however, American courts began striking down statutes
wholesale as “unconstitutionally indefinite.” Id ., at 617.
This Court first adopted that approach in 1914, see International Harvester Co. of America v. Kentucky , 234 U.S.
216 , and has since repeatedly used the vagueness doctrine “to
strike down democratically enacted laws” in the name of substantive
due process, Sessions v. Dimaya , 584 U.S. 148, 210
(2018) (Thomas, J., dissenting); see Johnson , 576
U. S., at 618–621 (opinion of Thomas, J.). As I have
explained, I doubt that “our practice of striking down statutes as
unconstitutionally vague is consistent with the original meaning of
the Due Process Clause.” Dimaya , 584 U. S., at 206
(opinion of Thomas, J.); see Johnson , 576 U. S., at 622
(opinion of Thomas, J.).

															The vagueness doctrine was the direct ancestor
of one subset of modern facial challenges, the overbreadth
doctrine. See United States v. Sineneng-Smith , 590
U.S. 371, 385 (2020) (Thomas, J., concurring) (noting that the
overbreadth doctrine “developed as a result of the vagueness
doctrine’s application in the First Amendment context”). In Thornhill v. Alabama , 310 U.S.
88 (1940), the Court deemed an antipicketing statute “invalid
on its face” due to its “sweeping proscription of freedom of
discussion.” Id., at 101–106. The Thornhill Court did
so “[w]ithout considering whether the defendant’s actual conduct
was entitled to First Amendment protection,” instead invalidating
the law because it “ ‘swept within its ambit . . .
activities that in ordinary circumstances constitute an exercise of
freedom of speech or of the press.’ ” Sineneng-Smith ,
590 U. S., at 383 (opinion of Thomas, J.) (quoting Thornhill , 310 U. S., at 97; alteration omitted). Thornhill ’s approach quickly gained
traction in the First Amendment context. In the years to follow,
the Court “invoked [its] rationale to facially invalidate a wide
range of laws” concerning First Amendment rights—a practice that
became known as the overbreadth doctrine. Sineneng-Smith ,
590 U. S., at 383. Under that doctrine, a court can invalidate
a statute if it “prohibits a substantial amount of protected
speech,” “relative to the statute’s plainly legitimate
sweep.”[ 5 ] Williams , 553
U. S., at 292. The Court has never attempted to ground the
overbreadth doctrine “in the text or history of the First
Amendment.” Sineneng-Smith , 590 U. S., at 384 (opinion
of Thomas, J.). Instead, the Court has supplied only “policy
considerations and value judgments.” Ibid .

															The overbreadth and vagueness doctrines’ method
of facial 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 resist the
broad use of facial challenges. For example, in Broadrick v. Oklahoma , 413 U.S.
601 (1973), the Court emphasized that “[c]onstitutional
judgments, as Mr. Chief Justice Marshall recognized, are justified
only out of the necessity of adjudicating rights in particular
cases between the litigants brought before the Court.” Id., at 611. In that vein, the Court characterized “facial overbreadth
adjudication [as] an exception to our traditional rules of
practice.” Id ., at 615. But, the Court eventually
entertained facial challenges more broadly where a plaintiff
established that “no set of circumstances exists under which the
Act would be valid.” [ 6 ] Salerno , 481 U. S., at 745. Just as with the
overbreadth doctrine, the Court has yet to explain how facial
challenges are consistent with the Constitution’s text or
history.

															Given how our facial challenge doctrine seems to
have developed—with one doctrinal mistake leading to another—it is
no wonder that facial challenges create a host of constitutional
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 limitation of federal-court
jurisdiction to actual cases or controversies.” Simon v. Eastern Ky. Welfare Rights Organization , 426 U.S.
26 , 37 (1976). Because that requirement precludes courts from
judging and enjoining statutes as applied to nonparties, the Court
should discontinue the practice of facial challenges.

															*  *  *

															The Court has recognized the problems that
facial challenges pose, emphasizing that they are “disfavored,” Washington State Grange , 552 U. S., at 450, and “best
when infrequent,” Sabri , 541 U. S., at 608. The Court
reiterates those sentiments today. Ante, at 9, 30. But,
while sidelining facial challenges provides some measure of relief,
it ignores the real problem. Because federal courts are bound by
Article III’s case-or-controversy requirement, holding a statute
unconstitutional as applied to nonparties is not simply
disfavored—it exceeds the authority granted to federal courts. It
is high time the Court reconsiders its facial challenge
doctrine. Notes 1 This is not to say that
federal courts can never adjudicate a constitutional claim if a
plaintiff styles it as a facial challenge. Whenever a plaintiff
alleges a statute is unconstitutional in many or all of its
applications, that argument nearly always includes an allegation
that the statute is unconstitutional as applied to the plaintiff.
Federal courts are free to consider challenged statutes as applied
to the plaintiff before them and limit any relief accordingly. See
generally Americans for Prosperity Foundation v. Bonta , 594 U.S. 595, 618–619 (2021); id ., at 621
(Thomas, J., concurring in part and concurring in
judgment). 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 provisions 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 constitutional
concerns.” See FDA v. 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. 3 “The later history of the
New York Council of Revision demonstrates the wisdom of the
Framers’ decision.” United States v. Hansen , 599 U.S.
762, 790 (2023) (Thomas, J., concurring). The Council’s ability to
lodge objections proved significant: “Over the course of its
existence, [the Council] 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 matters
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 deciding vote at the last minute,
seemingly on a whim.” Ibid. Concerns over the Council’s
“intrusive involvement in the legislative process” eventually led
to its abolition in 1820. Ibid. 4 See, e . g ., Austin v. Aldermen , 7 Wall. 694, 699 (1869) (holding
that the Court could “only consider the statute in connection with
the case before” it and thus “our jurisdiction [wa]s at an end”
once it “ascertained that [the case] wrought no effect which the
act forbids”); Liverpool, New York & Philadelphia S. S.
Co. v. Commissioners of Emigration , 113 U.S.
33 , 39 (1885) (the Court “has no jurisdiction to pronounce any
statute . . . irreconcilable with the Constitution,
except as it is called upon to adjudge the legal rights of
litigants in actual controversies”); Chicago & Grand Trunk
R. Co. v. Wellman , 143 U.S.
339 , 345 (1892) (explaining that judicial review of a statute’s
constitutionality “is legitimate only in the last resort, and as a
necessity in the determination of real, earnest, and vital
controversy between individuals”); Muskrat v. United
States , 219 U.S.
346 , 357 (1911) (“[T]here [i]s no general veto power in the
court upon the legislation of Congress”); Yazoo &
Mississippi Valley R. Co. v. Jackson Vinegar Co. , 226 U.S.
217 , 219 (1912) (rejecting argument that statute was “void in toto ,” because the Court “must deal with the case in
hand and not with imaginary ones”); Dahnke-Walker Milling
Co. v. Bondurant , 257 U.S.
282 , 289 (1921) (“[A] litigant can be heard to question a
statute’s validity only when and so far as it is being or is about
to be applied to his disadvantage”); Massachusetts v .
Mellon , 262 U.S.
447 , 488 (1923) (Federal courts “have no power per se to review and annul acts of Congress on the
ground that they are unconstitutional. That question may be
considered only when the justification for some direct injury
suffered or threatened, presenting a justiciable issue, is made to
rest upon such an act”). 5 Although the Court’s
precedents describe an unconstitutionally overbroad statute as
facially “invalid,” “federal courts have no authority to erase a
duly enacted law from the statute books.” J. Mitchell, The
Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018); see Sineneng-Smith , 590 U. S., at 387 (opinion of Thomas,
J.). 6 Some Members of the Court
subsequently sought to apply a more lenient standard to all facial
challenges. See Washington State Grange v. Washington
State Republican Party , 552 U.S.
442 , 449 (2008) (noting that “some Members of the Court have
criticized the Salerno formulation”); United States v. Stevens , 559 U.S.
460 , 472 (2010) (reserving the question of which standard
applies to “a typical facial attack”). 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]

															Justice Alito, with whom Justice Thomas and
Justice Gorsuch join, concurring in the judgment.

															The holding in these cases is narrow: NetChoice
failed to prove that the Florida and Texas laws they challenged are
facially unconstitutional. Everything else in the opinion of the
Court is nonbinding dicta.

															I agree with the bottom line of the majority’s
central holding. 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 precedents is
incomplete. And its broader ambition of providing guidance on
whether one part of the Texas law is unconstitutional as applied to
two features of two of the many platforms 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 need and no good reason to decide anything other than
the facial unconstitutionality question actually before us. After
all, we do not know how the platforms “moderate” their users’
content, much less whether they do so in an inherently 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 unsupported assertion that
social-media platforms—which use secret algorithms to review and
moderate an almost unimaginable 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
provide the proper occasion to do so. For these reasons, I am
therefore compelled to provide a more complete discussion of those
matters than is customary in an opinion that concurs only in the
judgment.

															I

															As the Court has recognized, social-media
platforms have become the “modern public square.” Packingham v. North Carolina , 582 U.S. 98, 107 (2017). In just a few
years, they have transformed the way in which millions of Americans
communicate with family and friends, perform daily chores, conduct
business, and learn about and comment on current events. The vast
majority of Americans use social media,[ 1 ] and the average person spends more than two hours a day
on various platforms.[ 2 ] Young
people now turn primarily to social media to get the news,[ 3 ] and for many of them, life 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 having a devastating effect on many young people, leading to
depression, isolation, bullying, and intense pressure to endorse
the trend or cause of the day.[ 5 ]

															In light of these trends, platforms and
governments have implemented measures to minimize the harms unique
to the social-media context. Social-media companies have created
user guidelines establishing the kinds of content that users may
post and the consequences of violating those guidelines, which
often include removing nonconforming posts or restricting
noncompliant users’ access to a platform.

															Such enforcement decisions can sometimes have
serious consequences. Restricting access to social media can impair
users’ ability to speak to, learn from, and do business with
others. Deleting the account of an elected official or candidate
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 effect on popular views.

															Concerned that social-media platforms could
abuse their enormous power, Florida and Texas enacted laws that
prohibit 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 censored
. . . 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 surveying 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

															1

															I start with Florida’s law, S. B. 7072,
which regulates any internet platform that does “business in the
state” and has either “annual gross revenues in excess of $100
million” or “at least 100 million monthly individual platform
participants globally.” Fla. Stat. §501.2041(1)(g) (2023). This
definition 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 reviews,
ask and answer questions, or communicate with others online. These
may include Uber, Etsy, PayPal, Yelp, Wikipedia, and Gmail. See, e.g. , Tr. of Oral Arg. in No. 22–555, pp. 54–56, 69, 76–79,
155; Brief for Wikimedia Foundation as Amicus Curiae 6;
Brief for Yelp Inc. as Amicus Curiae 4, n. 4.

															To prevent covered platforms from unfairly
treating Floridians, S. B. 7072 imposes the following
“content- moderation” and disclosure requirements: Content-moderation provisions . “Content
moderation” is the gentle-sounding term used by internet platforms
to denote actions they take purportedly to ensure that user-
provided content complies with their terms of service and
“community standards.” The Florida law eschews this neologism and
instead uses the old-fashioned term “censorship.” To prevent
platforms from discriminating against certain views or speakers,
that law requires each regulated platform to enforce its
“censorship . . . standards in a consistent 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 restriction by regularly modifying their practices, the law
prohibits platforms from changing their censorship “rules, terms,
and agreements . . . more than once every 30 days.”
§501.2041(2)(c). And to give Floridians more control over how they
view content on social-media websites, the law requires each
platform to give its users the ability to “opt out” of its
content-sorting “algorithms” and instead view posts sequentially or
chronologically. §501.2041(2)(f ).[ 6 ]

															Although some platforms still have employees who
monitor and organize social-media feeds, for most platforms, “the
incredible volume of content shared each day makes human review of
each new post impossible.” Brief for Developers Alliance et al. as Amici Curiae 4. Consequently, platforms rely heavily on
algorithms to organize and censor content. Ibid. And it is
likely that they will increasingly rely on 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 attempts to prevent platforms from unfairly influencing
elections or distorting public discourse. To do this, it requires
platforms to host candidates for public office and journalistic
enterprises.[ 7 ]
§§501.2041(2)(h), (j). For the same reasons, 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 censorship 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.
§501.2041(5). The law allows the Florida Elections Commission 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, punitive damages, and attorney’s fees.
§501.2041(6).

															To protect platforms, the law provides that it
“may only be enforced to the extent not inconsistent with federal
law,” including §203 of the Communications Decency Act of 1996.
§501.2041(9). Section 230(c)(2)(A) of that Act shields internet
platforms from liability for voluntary, good-faith efforts to
restrict or remove content that is “obscene, lewd, lascivious,
filthy, excessively violent, harassing, or otherwise
objectionable.” 47 U. S. C. §230(c)(2)(A).

															2

															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 violate the freedom of speech because the First Amendment
permits the regulation of the conduct of entities that do not
express their own views but simply provide the means for others to
communicate. See Record in No. 4:21–CV–00220 (ND Fla.), Doc. 106,
p. 22 (citing Rumsfeld v. Forum for Academic 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
threshold because NetChoice had not identified which of its members
were required to comply with the new law or how each of its
members’ presentation of third-party speech expressed that
platform’s own message. Record, Doc. 106, at 30, 58–59; id .,
Doc. 118, pp. 5, 24–25. Without this information, Florida
said, it could not properly respond to NetChoice’s facial claim. Id ., Doc. 122, pp. 4–5. Florida requested a “meaningful
opportunity to take discovery.” Tr. of Oral Arg. in No. 22–277,
p. 154. NetChoice objected. Record, Doc. 122.

															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]
facial 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
disseminate third-party created content to the public” were
constitutionally protected expression. NetChoice v. Attorney Gen., Fla. , 34 F. 4th 1196, 1212 (2022). Under
that framing, the court found that the moderation and individual-
disclosure provisions likely failed intermediate scrutiny,
obviating the need to determine whether strict scrutiny applied. Id., at 1227.[ 9 ] But the
court held that the general-disclosure provisions, which require
only that platforms publish their censorship policies, met the
intermediate-scrutiny standard set forth in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio , 471 U.S.
626 (1985). 34 F. 4th, at 1230. The Eleventh Circuit
therefore vacated the portion of the District Court’s order that
enjoined the enforcement of those general-disclosure provisions,
while affirming all the rest of the injunction. Id., at
1231.

															B

															1

															Around the same time as the enactment of the
Florida law, Texas adopted a similar measure, H. B. 20, which
covers “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 application
that is open to the public, allows a user to create an account, and
enables users to communicate with other users for the primary
purpose of posting information, comments, 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 following 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,
restrict, deny equal access or visibility to, or otherwise
discriminate against”—based on their viewpoint or geographic
location within Texas.[ 10 ],[ 11 ],[ 12 ] Tex. Civ. Prac. & Rem. Code
Ann. §§143A.001(1), 143A.002(a)(1)–(3) (West Cum. Supp. 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 otherwise 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 disclosures 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).[ 13 ]
Platforms must allow users to appeal removal decisions through “an
easily accessible complaint system;” resolve such appeals within 14
business days (unless an enumerated exception applies); and, if the
appeal is successful, provide “the reason for the reversal.”
§§120.101, 120.103(a)(2), (a)(3)(B)–(b), 120.104.

															Users may sue any platform that violates these
provisions, as may the Texas attorney general. §143A.007(d). But
unlike the Florida law, H. B. 20 authorizes only injunctive
relief. §§143A.007(a), 143 A. 008. It contains a strong
severability provision, §8(a), which reaches “every provision,
section, subsection, sentence, clause, phrase, or word in th[e]
Act, and every application of [its] provisions.”

															2

															As it did in the Florida case, NetChoice
sought a preliminary injunction in federal court, claiming that
H. B. 20 violates 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 censor
their users’ speech, the State argued, the question of “ what these algorithms are doing is a critical, and so far, unexplained,
aspect of this case.” Id ., at 24. This 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 members’ algorithms did, much less whether
they did so in an expressive way, Texas argued that NetChoice had
not shown that “all applications of H.B. 20 are unconstitutional.” Ibid. ; see also id ., Doc. 53, at 13 (arguing that
NetChoice had failed to show that “H. B. 20 is . . .
unconstitutional in all its 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
District Court granted Texas’s motion in part, but after one month
of discovery, it sided with NetChoice and enjoined H. B. 20 in
its entirety before it could go into effect. Texas appealed,
arguing that despite the District Court’s judgment to the contrary,
“[l]aws requiring commercial entities to neutrally host speakers
generally do not even implicate the First Amendment because they do
not regulate the host’s speech at all—they regulate its conduct.”
Brief for Appellant in No. 21–51178 (CA5), p. 16. The State also
emphasized 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 Americans for
Prosperity Foundation v. Bonta , 594 U.S. 595, 615
(2021)).

															A divided Fifth Circuit panel reversed, focusing
primarily on NetChoice’s failure to “even try to show that HB 20 is
‘unconstitutional in all of its applications.’ ” 49
F. 4th 439, 449 (2022) (quoting Washington State Grange v. Washington State Republican Party , 552 U.S.
442 , 449 (2008)). The court also accepted Texas’s argument that
H. B. 20 “does not regulate the Platforms’ speech at all”
because “the Platforms are not ‘speaking’ when they host other
people’s speech.” 49 F. 4th, at 448. Finally, the court upheld
the law’s disclosure requirements on the ground that they involve
the disclosure of the type of purely factual and uncontroversial
information that may be compelled under Zauderer . 49 F. 4th,
at 485.

															II

															NetChoice contends that the Florida and Texas
statutes facially violate the First Amendment, meaning that they
cannot be applied to anyone at any time under any circumstances
without violating the Constitution. Such challenges are strongly
disfavored. See Washington State Grange , 552 U. S., at
452. They often raise the risk of “ ‘premature
interpretatio[n] of statutes’ on the basis of factually barebones
records.” Sabri v. United States , 541 U.S.
600 , 609 (2004). They clash with the principle that courts
should neither “ ‘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 , 297 U.S.
288 , 346–347 (1936) (Brandeis, J., concurring). And they
“threaten to short circuit the democratic process by preventing
laws embodying the will of the people from being implemented in a
manner consistent with the Constitution.” Washington State
Grange , 552 U. S., at 451.

															Facial challenges also strain the limits of the
federal courts’ constitutional authority to decide only actual
“Cases” and “Controversies.” Art. III, §2. “[L]itigants typically
lack standing to assert the constitutional rights of third
parties.” United States v. Hansen , 599 U.S. 762, 769
(2023). But when a court holds that a law cannot be enforced
against anyone under any circumstances, it effectively grants
relief with respect to unknown parties in disputes that have not
yet materialized.

															For these reasons, we have insisted that parties
mounting facial attacks satisfy demanding requirements. In United States v. Salerno , 481
U.S. 739 , 745 (1987), we held that a facial challenger must
“establish that no set of circumstances exists under which the
[law] would be valid.” “While some Members of the Court have
criticized the Salerno formulation,” all have agreed “that a
facial challenge must fail where the statute has a “ ‘plainly
legitimate sweep.” ’ ” Washington State Grange ,
552 U. S., at 449. In First Amendment cases, we have sometimes
phrased the requirement as an obligation to show that a law
“ ‘prohibits a substantial amount of protected speech’ ”
relative to its ‘ “plainly legitimate sweep.’ ” Hansen , 599 U. S., at 770; Bonta , 594
U. S., at 615; United States v. Williams , 553 U.S.
285 , 292–293 (2008).[ 14 ]

															NetChoice and the Federal Government urge us not
to apply any of these demanding tests because, they say, the States
disputed only the “threshold question” whether their 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] basket.” Tr. of Oral Arg. in No. 22–277, at 76. To be
sure, they argued that their newly enacted laws were valid in all
their applications. Ibid. Both the Federal Government and
the States almost always defend the constitutionality of all
provisions of their laws. But Florida and Texas did not stop there.
Rather, as noted above, they went on to argue that NetChoice had
failed to make the showing required for a facial
challenge.[ 15 ] Therefore,
the record does not support NetChoice’s attempt to use “the party
presentation rules” as grounds for blocking our consideration of
the question whether it 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
applications of the challenged laws unless that test was met. “It
is one thing to allow parties to forfeit claims, defenses, or lines
of argument; it would be quite another to allow parties to
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 ., 75 F. 4th 153, 160 (CA3 2023) (“But
parties cannot forfeit the application of ‘controlling
law’ ”); United States v. Escobar , 866 F.3d 333,
339, n. 13 (CA5 2017) ( per curiam ) (“ ‘A party cannot
waive, concede, or abandon the applicable standard of
review’ ” (quoting Ward v. Stephens , 777 F.3d
250, 257, n. 3 (CA5 2015)).

															Represented by sophisticated counsel, NetChoice
made the deliberate choice to mount a facial challenge to both
laws, and in doing so, it obviously knew what it would have to show
in order to prevail. NetChoice decided to fight these laws on these
terms, and the Court properly holds it to that decision.

															III

															I therefore turn to the question whether
NetChoice established 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 under the First Amendment. Our
precedents interpreting that Amendment provide the numerator (the
number of unconstitutional applications) and denominator (the total
number of possible applications) that NetChoice was required to
identify in order to make that showing. Estimating the numerator
requires an understanding of the First Amendment principles that
must be applied here, and I therefore provide a brief review of
those principles.

															A

															The First Amendment protects “the freedom of
speech,” and most of our cases interpreting this right have
involved government efforts to forbid, restrict, or compel a
party’s own oral or written expression. Agency for Int’l
Development v. Alliance for Open Society Int’l, Inc. , 570 U.S.
205 , 213 (2013); Wooley v. Maynard , 430 U.S.
705 , 714 (1977); West Virginia Bd. of Ed. v. Barnette , 319 U.S.
624 , 642 (1943). Some cases, however, have involved another
aspect of the free speech right, namely, the right to “presen[t]
. . . an edited compilation of speech generated by other
persons” for the purpose of expressing a particular message. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, Inc. , 515 U.S.
557 , 570 (1995). As used in this context, the term
“compilation” means any effort to present the expression of others
in some sort of organized package. See ibid. An example such as the famous Oxford Book of
English Poetry illustrates why a compilation may constitute
expression on the part of the compiler. The editors’ selection of
the poems included in this volume expresses their view about the
poets and poems that most deserve the attention of their
anticipated readers. Forcing the editors to exclude or include a
poem could alter the expression that the editors wish to
convey.

															Not all compilations, however, have this
expressive characteristic. Suppose that the head of a neighborhood
group prepares a directory consisting of contact information
submitted by all the residents who want to be listed. This
directory 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
compilations 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 message.” FAIR , 547 U. S., at 66; Pacific Gas & Elec.
Co. v. Public Util. Comm’n of Cal. , 475 U.S.
1 , 10 (1986) ( PG&E ) (plurality opinion). If a
compilation is inherently expressive, then the compiler may have
the right to refuse to accommodate a particular speaker or message.
See Hurley , 515 U. S., at 573. But if a compilation is
not inherently expressive, then the government can require the
compiler to host a message or speaker because the accommodation
does not amount to compelled speech. Id. , at 578–581.

															To show that a hosting requirement would compel
speech and thereby trigger First Amendment scrutiny, a claimant
must generally show three things.

															1

															First, a claimant must establish that its
practice is to exercise “editorial discretion in the selection and
presentation” of the content it hosts. Arkansas Ed. Television
Comm’n v. Forbes , 523 U.S.
666 , 674 (1998); Hurley , 515 U. S., at 574; ante, at 14. NetChoice describes this process as content
“curation.” But whatever you call it, not all compilers do this, at
least in a way that is inherently expressive. Some may serve as
“passive receptacle[s]” of third-party speech or as “dumb
pipes”[ 16 ] that merely emit
what they are fed. Such entities communicate no message of their
own, and accordingly, their conduct does not merit First Amendment
protection.[ 17 ] Miami
Herald Publishing Co. v. Tornillo , 418
U.S. 241 , 258 (1974).

															Determining whether an entity should be viewed
as a “curator” or a “dumb pipe” may not always be easy because
different aspects of an entity’s operations may take different
approaches with respect to hosting third-party speech. The typical
newspaper regulates the content and presentation of articles
authored by its employees or others, PG&E , 475
U. S., at 8, but that same paper might also run nearly all the
classified advertisements it receives, regardless of their content
and without adding any expression of its own. Compare Tornillo , 418 U.S.
241 , with Pittsburgh Press Co. v. Pittsburgh Comm’n
on Human Relations , 413
U.S. 376 (1973). These differences may be significant for First
Amendment purposes.

															The same may be true for a parade organizer. For
example, the practice of a parade organizer may be to select the groups that are admitted, but not the individuals who
are allowed to march as members of admitted groups. Hurley ,
515 U. S., at 572–574. In such a case, each of these practices
would have to be analyzed separately.

															2

															Second, the host must use the compilation of
speech to express “some sort of collective point”—even if only at a
fairly abstract level. Id. , at 568. Thus, a parade organizer
who claims a First Amendment right to exclude certain groups or
individuals would need to show at least that the message conveyed
by the groups or individuals who are allowed 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, succinctly articulable message is not a
condition of constitutional protection,” compilations that organize
the speech of others in a non-expressive way ( e.g., chronologically) fall “beyond the realm of expressi[on].” Id., at 569; contra, ante, at 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) because the mall’s admission policy did
not express any message, and because the mall was “open to the
public at large.” PruneYard Shopping Center v. Robins , 447 U.S.
74 , 83, 87–88 (1980); 303 Creative LLC v. Elenis ,
600 U.S. 570, 590 (2023). In such circumstances, we held that the
First Amendment is not implicated merely because a host objects to
a particular message or viewpoint. See PG&E , 475
U. S., at 12.

															3

															Finally, a compiler must show that its “own
message [is] affected by the speech it [is] forced to accommodate.” FAIR , 547 U. S., at 63. In core examples of expressive
compilations, 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 expressed 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.” 447 U. S.,
at 87. And if those who perused the handbills or petitions were not
likely to make that connection, any message that the mall owner
intended to convey would not be affected.

															The decision in FAIR rested on similar
reasoning. In that case, the Court did not dispute the proposition
that the law schools’ refusal to host military recruiters expressed
the message that the military should admit and retain gays and
lesbians. But the Court found no First Amendment violation 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 misattribution.”).[ 18 ]

															B

															A party that challenges government
interference with its curation of content cannot win without making
the three-part showing just outlined, but such a showing does not
guarantee victory. To prevail, the party must go on and show that
the challenged regulation of its curation practices violates the
applicable level of First Amendment scrutiny.

															Our decision in Turner makes that clear.
Although the television cable operators in that case made the
showing needed to trigger First Amendment scrutiny, they did not
ultimately prevail on their facial challenge to the Cable Act.
After a remand and more than 18 months of additional factual
development, the Court held that the law was adequately tailored to
serve legitimate and important government interests, including
“promoting the widespread dissemination of information from a
multiplicity of sources.” Turner Broadcasting System, Inc. v. FCC , 520 U.S.
180 , 189 (1997). Here, the States assert a similar interest in
fostering a free and open marketplace of ideas.[ 19 ]

															C

															With these standards in mind, I proceed to the
question whether the content-moderation provisions are facially
valid. For the following three reasons, NetChoice failed to meet
its burden.

															1

															First, NetChoice did not establish which
entities the statutes 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 disclose which of its members were covered by
S. B. 7072. Instead, 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
“represented . . . that only Facebook, YouTube, and [X]
are affected 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, Instagram, Pinterest,
TikTok, Vimeo, X (formerly known as Twitter), and YouTube.” Brief
for Petitioners in No. 22–555, p. 1. And websites such as
Discord,[ 21 ]
Reddit,[ 22 ]
Wikipedia,[ 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 information, we
have no way of knowing whether the laws at issue here “cover
websites that engage in primarily non- expressive conduct.” Tr. of
Oral Arg. in No. 22–277, at 34; see also id., at 126.
For example, among other things, NetChoice has not stated whether
the challenged laws reach websites like WhatsApp[ 25 ] and Gmail,[ 26 ] which carry messages instead of curating them to create an independent speech product. Both
laws also appear to cover Reddit[ 27 ] and BeReal,[ 28 ] and websites like Parler,[ 29 ] which claim to engage in little or no content
moderation at all. And Florida’s law, which is even broader than
Texas’s, plainly applies to e-commerce 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 , 552 U. S., at 449.

															2

															Second, NetChoice has not established what kinds of content 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 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 reflect their “consumer
experience” with businesses.[ 33 ] It does not permit “rants about political ideologies,
a business’s employment practices, extraordinary circumstances, or
other matters that don’t address the core of the consumer
experience.”[ 34 ]

															As this example shows, X’s content is more
political than Yelp’s, and Yelp’s content is more commercial than
X’s. That difference may be significant for First Amendment
purposes. See Pittsburgh Press , 413
U.S. 376 . But NetChoice has not developed the record on that
front. Nor has it shown what kinds of content appear across the
diverse array of regulated platforms.

															Social-media platforms are diverse, and each may
be unique in potentially significant ways. On the present record,
we are ill-equipped to account for the many platform-specific
features that allow users to do things like sell or purchase
goods,[ 35 ] live-stream
events,[ 36 ] request a
ride,[ 37 ] arrange a
date,[ 38 ] create a
discussion forum,[ 39 ] wire
money to friends,[ 40 ] play a
video game,[ 41 ] hire an
employee,[ 42 ] log a
run,[ 43 ] or agree to watch a
dog.[ 44 ] The challenged laws
may apply differently to these different functions, which may
present different First Amendment issues. A court cannot invalidate
the challenged laws if it has to speculate about their
applications.

															3

															Third, NetChoice has not established how websites moderate content. NetChoice alleges that
“[c]overed websites” generally use algorithms to organize and
censor content appearing 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 expressive. See Hurley , 515 U. S., at 568. Facebook and Reddit, for
instance, both allow their users to post about a wide 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 centralized 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
express their own views.

															Perhaps recognizing this, NetChoice argues in
passing that it cannot tell us how its members moderate content
because doing so would embolden “malicious actors” and divulge
“proprietary and closely held” information. E.g., Brief for
Petitioners in No. 22–555, at 11. But these harms are far from
inevitable. Various platforms already make similar disclosures—both
voluntarily and to comply with the European Union’s Digital
Services Act[ 46 ]—yet the sky
has not fallen. And on remand, NetChoice will have the opportunity
to contest whether particular disclosures are necessary and whether
any relevant materials should be filed under seal.

															Various NetChoice members already disclose in
broad strokes how they use algorithms to curate content. Many
platforms claim to use algorithms to identify and remove violent,
obscene, sexually explicit, and false posts that violate their
community guidelines. Brief for Developers Alliance et al. as Amici Curiae 11. Some platforms—like X, for instance—say
they use algorithms, not for the purpose of removing all
nonconforming speech, but to “promot[e] counterspeech” 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
engage in little or no content moderation.

															Some platforms have also disclosed that they use
algorithms to help their users find relevant content. The
e-commerce platform Etsy, for instance, uses an algorithm that
matches a user’s search terms to the “attributes” that a seller
ascribes to its wares.[ 51 ]
Etsy’s algorithm also accounts for things like the date of the
seller’s listing, the proximity of the seller and buyer, and the
quality of the seller’s customer-service ratings. Ibid. YouTube says it answers search queries based on
“relevance, engagement and quality”—taking into account how well a
search query matches a video title, the kinds of videos a
particular user viewed in the past, and each creator’s “expertise,
authoritativeness, and trustworthiness on a given topic.”[ 52 ]

															These disclosures suggest that platforms can say
something about their content-moderation practices without enabling
malicious actors or disclosing proprietary information. They also
suggest that not all platforms curate all third-party content in an
inherently expressive way. Without more information about how
regulated platforms moderate content, it is not possible to
determine whether these laws lack “a ‘ “plainly legitimate
sweep.” ’ ” Washington State Grange , 552
U. S., at 449.

															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 question, 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 unconstitutionality—even if it is assumed
for the sake of argument that the Texas law is unconstitutional as
applied to Facebook’s News Feed and YouTube’s homepage.[ 53 ]

															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. For example, the
majority paints an attractive, though simplistic, picture of what
Facebook’s News Feed and YouTube’s homepage do behind the scenes.
Taking NetChoice at its word, the majority says that the platforms’
use of algorithms to enforce their community standards is per se expressive. But the platforms have refused to
disclose how these algorithms were created and how they actually
work. And the majority fails to give any serious consideration 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 Facebook—which constitute the 21st
century equivalent of the old “public square”—should be viewed as
common carriers. See Biden v. Knight First Amendment
Institute at Columbia University , 593 U. S. ___, ___
(2021) (Thomas, J., concurring) (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 arguments, the majority rests on NetChoice’s dubious
assertion that there is no constitutionally significant difference
between 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
mechanically 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.[ 55 ]

															No human being could possibly review even a tiny
fraction of this gigantic outpouring of speech, and it is therefore
hard to see how any shared message could be discerned. And even if
someone could view all this data and find such a message, how
likely is it that the addition of a small amount of discordant
speech would change the overall message?

															Now consider how newspapers and social-media
platforms edit content. Newspaper editors are real human beings,
and when the Court decided Tornillo (the case that the
majority 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 content based on factors that
the platforms have not revealed and may not even know. After all,
many of the biggest platforms are beginning to use AI algorithms to
help them moderate 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. American Express Co. , 585 U.S. 529 (2018). And maybe we
should think about the unique ways in which social-media platforms
influence public thought. To be sure, I do not suggest that we
should decide at this time whether the Florida and Texas laws are
constitutional as applied to Facebook’s News Feed or YouTube’s
homepage. My argument is just the opposite. Such questions should
be resolved in the context of an as-applied challenge. But no
as-applied question is before us, and we do not have all the facts
that we need to tackle the extraneous matters reached by the
majority.

															Instead, when confronted with the application of
a constitutional requirement to new technology, we should proceed
with caution. While the meaning of the Constitution remains
constant, the application of enduring principles to new technology
requires an understanding of that technology and its effects.
Premature resolution of such questions creates the risk of
decisions that will quickly turn into embarrassments.

															IV

															Just as NetChoice failed to make the showing
necessary to demonstrate that the States’ content-moderation
provisions are facially unconstitutional, NetChoice’s facial
attacks on the individual-disclosure provisions also fell short.
Those provisions require platforms to explain to affected users the
basis of each content-censorship decision. Because these
regulations provide for the disclosure of “purely factual and
uncontroversial information,” they must be reviewed 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. 471 U. S., at
651.[ 57 ]

															For Zauderer purposes, a law is “unduly
burdensome” if it threatens to “chil[l] protected commercial
speech.” Ibid. Here, NetChoice claims that these disclosures
have that effect 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 accepting
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. Instead, NetChoice merely
identified one subset of one platform’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
automated 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 follow with regard to all of NetChoice’s
members.

															NetChoice’s failure to make this broader showing
is especially 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 requirements.
Before its change in ownership, the previous Chief Executive
Officer of the platform now known as X went as far as to say that
“all companies” should be required to explain censorship decisions
and “provide a straightforward process to appeal decisions made by
humans or algorithms.”[ 58 ]
Moreover, as mentioned, many platforms are already providing
similar disclosures pursuant to the European Union’s Digital
Services Act. Yet complying with that law does not appear to have
unduly burdened each platform’s speech in those countries. On
remand, the courts might consider whether compliance with EU law
chilled the 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. Notes 1 J. Gottfried, Pew
Research Center, Americans’ Social Media Use 3 (2024). As platforms
incorporate new features and technology, the number of Americans
who use social media is expected to grow. S. Dixon, Statista,
Social Media Users in the United States 2020–2029 (Jan. 30, 2024),
https://www.statista.com/statistics/278409/number-of-social-network-users-in-the-united-states. 2 V. Filak, Exploring Mass
Communication: Connecting With the World of Media 210
(2024). 3 Social Media and News
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, Specification Curve
Analysis Shows That Social Media Use Is Linked to Poor Mental
Health, Especially Among Girls, 224 Acta Psychologica 1, 8–12
(2022). 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. 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
published at least 100 hours of audio or video online and has at
least 100 million annual viewers; (3) operates a cable channel that
produces more than 40 hours of content per week to at least 100,000
subscribers; or (4) operates under a Federal Communications
Commission broadcast license. Fla. Stat.
§501.2041(1)(d). 8 NetChoice also argued
that S. B. 7072 is preempted by 47 U. S. C. §230(c)
and is unconstitutionally vague. Those arguments are not before us
because the District Court did not rule on the vagueness issue, 546
F. Supp. 3d 1082, 1095 (ND Fla. 2021), and the Eleventh
Circuit declined to reach the preemption issue, NetChoice v. Attorney Gen., Fla. , 34 F. 4th 1196, 1209
(2022). 9 See also id. , at
1214 (“unless posts and users are removed randomly , those
sorts of actions necessarily convey some sort of
message—most obviously, the platforms’ disagreement with
. . . certain content”); id. , at 1223 (“S.B.
7072’s disclosure provisions implicate the First
Amendment”). 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 otherwise noted, all internet sites last accessed May 22,
2024). 11 “[D]emonetization” often refers to
the act of preventing “online content 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. 14 At
oral argument, NetChoice represented that “it’s the plainly
legitimate sweep test, which is not synonymous with overbreadth,”
that governs 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 challenges 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 significantly
compromise recognized First Amendment protections of parties not
before the Court.” Members of City Council of Los Angeles v. Taxpayers for Vincent , 466 U.S.
789 , 801 (1984). And here, NetChoice appears to represent
all—or nearly all—regulated parties. 15 See
Reply Brief in No. 21–12355 (CA11), p. 15 (“Plaintiffs—in
their facial challenge—have failed to demonstrate that even a
significant subset of covered social media platforms engages in
[expressive] conduct.” See also Brief for Appellants in No.
21–12355 (CA11), p. 20 (NetChoice 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
constitutional 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 unconstitutional 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”). 16 American Broadcasting Cos. v. Aereo, Inc. , 573 U.S.
431 , 458 (2014) (Scalia, J., dissenting). 17 The
majority states that it is irrelevant whether “a compiler includes
most items and excludes just a few.” Ante , at 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 , 475 U.S.
1 , 23 (1986) (Marshall, J., concurring in judgment). Entities
that have assumed the role of common carriers fall into this
category, for example. And the States defend portions of their laws
on the ground that at least some social-media platforms have taken
on that role. The majority brushes aside that argument without
adequate consideration. 18 To be
sure, in Turner Broadcasting System, Inc. v. FCC , 512 U.S.
622 , 655 (1994), we held that the First Amendment applied even
though there was “little risk” of misattribution in that case. But
that is only because the claimants in that case had already shown
that the Cable Act affected the quantity or reach of the messages
that they communicated through “original programming” or television
programs produced by others. Id. , at 636 (internal quotation
marks omitted). In cases not involving 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 preventing
platforms from discriminating against speakers who reside in Texas
or engage in certain forms of off-platform speech. Brief for
Respondent 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 engaging in “ ‘invidious discrimination in the
distribution of publicly available goods, services, and other
advantages.’ ” Id. , at 18. These are “compelling state
interests of the highest order” too. Roberts v. United
States Jaycees , 468 U.S.
609 , 624 (1984). 20 This
concession suggests that S. B. 7072 may “cover websites that
engage in primarily non-expressive conduct.” Tr. of Oral Arg. in
No. 22–277, at 34. 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 accessed 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 platform that is run and
moderated by its users). 28 BeReal, which appears to have enough
monthly users to be covered by the Texas law, allows users to share
a photo with their friends once during a randomly selected 2-minute
window each day. Time To BeReal,
https://help.bereal.com/hc/en-us/articles/7350386715165--Time-to-BeReal
(last accessed Apr. 23, 2024). Twenty-four hours later, those
photos disappear. Because BeReal posts thus appear and disappear
“ randomly ,” even the Eleventh Circuit would agree that
BeReal likely is not an expressive compilation. 34 F. 4th, at
1214. 29 Community Guidelines, Parler,
https://www.parler.com/community-guidelines (May 31, 2024) (“We
honor the ability of all users to freely express themselves without
interference from oppressive censorship or manipulation”). Parler
probably does not have a sufficient number of monthly users to be
covered by these statutes. But it is possible that other covered
websites use a similar business model. 30 Our
House Rules, Etsy, https://etsy.com/legal/prohibited (last accessed
Apr. 23, 2024). 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 accessed Apr. 23,
2024). 34 Ibid. 35 E.g., Facebook Marketplace,
Etsy. 36 E.g., X Live,
Twitch. 37 E.g., Uber, Lyft. 38 E.g., Facebook Dating,
Tinder. 39 E.g., Reddit,
Quora. 40 E.g., Meta Pay, Venmo,
PayPal. 41 E.g., Metaverse,
Discord. 42 E.g., Indeed,
LinkedIn. 43 E.g., Strava. 44 E.g., Rover. 45 Community Standards, Facebook,
https://transparency.meta.com/policies/community-standards
(“[Facebook] wants people to be able to talk openly about the
issues that matter to them, whether through written comments,
photos, music, or other artistic mediums”); Brief for Reddit, Inc.,
as Amicus Curiae 12 (“[T]he Reddit platform as a whole
accommodates 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 platforms are required to comply with
this law. Compare Brief for Petitioners in No. 22–277, p. 49, with
Reply Brief in No. 22–277, p. 24; Tr. of Oral Arg. in No.
22–555, pp. 20–21. If, on remand, the States show that the
platforms have been able to comply with this law in Europe without
having to forgo “exercising editorial discretion at all,” Brief for
Respondents in No. 22–277, p. 40, then that might help them prove
that their disclosure laws are not “unduly burdensome” under Zauderer v. Office of Disciplinary Counsel of Supreme
Court of Ohio , 471 U.S.
626 (1985). 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 53 This
problem is even more pronounced for the Florida law, which covers
more platforms and conduct than the Texas law. 54 Breaking Down the Numbers: How Much
Data Does the World Create Daily in 2024? Edge Delta (Mar. 11,
2024), https://www.
edgedelta.com/company/blog/how-much-data-is-created-per-day. 55 The
average issue of the New York Times, excluding ads, contains about
150,000 words. A typical word consists of 10 to 20 bytes.
Therefore, 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. 57 Both
lower courts reviewed these provisions under the Zauderer test. And in the Florida case in particular, NetChoice did not
contest—and accordingly forfeited—whether Zauderer applies
here. See Brief for Appellants in No. 21–12355 (CA11), at 21; Brief
for Appellees in No. 21–12355 (CA11), p. 44. 58 Does
Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior?
Hearing before the Senate Committee on Commerce, Science, and
Transportation, 116th Cong., 2d Sess., 2 (2020) (statement of Jack
Dorsey, CEO, Twitter, Inc.). 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]

															Justice Barrett, concurring.

															I join the Court’s opinion, which correctly
articulates and applies our First Amendment precedent. In this
respect, the Eleventh Circuit’s understanding of the First
Amendment’s protection of editorial discretion was generally
correct; 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
discretion with respect to the services on which they have focused
throughout this litigation— e . g ., Facebook’s Newsfeed
and YouTube’s homepage—they would be better served by bringing a
First Amendment challenge as applied to those functions. Analyzing
how the First Amendment bears on those functions is complicated
enough without simultaneously analyzing how it bears on a
platform’s other functions— e.g. , Facebook Messenger and
Google Search—much less to distinct platforms like Uber and Etsy.
In fact, dealing with a broad swath of varied platforms and
functions in a facial challenge strikes me as a daunting, if not
impossible, task. A function qualifies for First Amendment
protection only if it is inherently expressive. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc. , 515 U.S.
557 , 568 (1995). Even for a prototypical social-media feed,
making this determination involves more than meets the eye.

															Consider, for instance, how platforms use
algorithms to prioritize and remove content on their feeds. Assume
that human beings decide to remove posts promoting a particular
political candidate or advocating some position on a public-health
issue. If they create an algorithm to help them identify and delete
that content, the First Amendment protects their exercise of
editorial judgment—even if the algorithm does most of the deleting
without a person in the loop. In that event, the algorithm would
simply implement human beings’ inherently expressive choice “to
exclude a message [they] did not like from” their speech
compilation. Id. , at 574.

															But what if a platform’s algorithm just presents
automatically 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 removed, has a human being with First Amendment rights
made an inherently expressive “choice . . . not to
propound a particular point of view”? Hurley , 515
U. S., at 575. In other words, technology may attenuate the
connection between content-moderation actions ( e . g ., removing posts) and human beings’
constitutionally protected right to “ decide for
[themselves] the ideas and beliefs deserving of expression,
consideration, and adherence.” Turner Broadcasting System,
Inc. v. FCC , 512 U.S.
622 , 641 (1994) (emphasis added). So the way platforms use this
sort of technology might have constitutional significance.

															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
corporations generally.” Hurley , 515 U. S., at 573–574
(quoting Pacific Gas & Elec. Co. v. Public Util.
Comm’n of Cal. , 475 U.S.
1 , 16 (1986)). Corporations, which are composed of human beings
with First Amendment rights, possess First Amendment rights
themselves. See Citizens United v. Federal Election
Comm’n , 558 U.S.
310 , 365 (2010); cf. Burwell v. Hobby Lobby Stores,
Inc. , 573 U.S.
682 , 706–707 (2014). But foreign persons and corporations
located abroad do not. Agency for Int’l Development v. Alliance for Open Society Int’l, Inc. , 591 U.S. 430, 433–436
(2020). So a social-media platform’s foreign ownership and control
over its content-moderation decisions might affect whether laws
overriding those decisions trigger First Amendment scrutiny. What
if the platform’s corporate leadership abroad makes the policy
decisions about the viewpoints and content the platform will
disseminate? Would it matter that the corporation employs Americans
to develop and implement content- moderation algorithms if they do
so at the direction of foreign executives? Courts may need to
confront such questions when applying the First Amendment to
certain platforms.

															These are just a few examples of questions that
might arise in litigation that more thoroughly exposes the relevant
facts about particular social-media platforms and functions. The
answers in any given case might cast doubt on—or might vindicate—a
social-media company’s invocation of its First Amendment rights.
Regardless, the analysis is bound to be fact intensive, and it will
surely vary from function to function and platform to platform. And
in a facial challenge, answering all of those questions isn’t even
the end of the story: The court must then find a way to measure the
unconstitutional relative to the constitutional applications to
determine whether the law “prohibits a substantial amount of
protected speech relative to its plainly legitimate sweep.” United States v. Hansen , 599 U.S. 762, 770 (2023)
(internal quotation marks omitted).

															A facial challenge to either of these laws
likely forces a court to bite off more than it can chew. An
as-applied challenge, by contrast, would enable courts to home in
on whether and how specific functions—like feeds versus direct
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.