Moody v. NetChoice, LLC

v. NETCHOICE, LLC, dba NETCHOICE, et al.

certiorari to the united states court of appeals for

the eleventh circuit No. 22–277. Argued February 26, 2024—Decided July 1, 2024* In 2021, Florida and Texas enacted statutes regulating large social-media companies and other internet platforms. The States' laws differ in the entities they cover and the activities they limit. But both curtail the platforms' capacity to engage in content moderation—to filter, prioritize, and label the varied third-party messages, videos, and other content their users wish to post. Both laws also include individualized-explanation provisions, requiring a platform to give reasons to a user if it removes or alters her posts. NetChoice LLC and the Computer & Communications Industry 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. The Eleventh Circuit upheld the injunction of Florida's law, as to all provisions relevant here. The court held that the State's restrictions on content moderation trigger First Amendment scrutiny under this Court's cases protecting “editorial discretion.” 34 F. 4th 1196, 1209, 1216. The court then concluded that the content-moderation provisions are unlikely to survive heightened scrutiny. Id., at 1227–1228. Similarly, the Eleventh Circuit thought the statute's individualized-explanation requirements likely to fall. Relying on Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio , 471 U. S. 626, the court held that the obligation to explain “millions of [decisions] per day” is “unduly burdensome and likely to chill platforms' protected speech.” 34 F. 4th, at 1230. The Fifth Circuit disagreed across the board, and so reversed the preliminary injunction of the Texas law. In that court's view, the platforms' content-moderation activities are “not speech” at all, and so do not implicate the First Amendment. 49 F. 4th 439, 466, 494. But even if those activities were expressive, the court determined the State could

regulate them to advance its interest in “protecting a diversity of ideas.” Id., at 482. The court further held that the statute's individualized-explanation provisions would likely survive, even assuming the platforms were engaged in speech. It found no undue burden under Zauderer because the platforms needed only to “scale up” a “complaint-and-appeal process” they already used. 49 F. 4th, at 487. Held: The judgments are vacated, and the cases are remanded, because neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws regulating large internet platforms. Pp. 723–745.

(a) NetChoice's decision to litigate these cases as facial challenges comes at a cost. The Court has made facial challenges hard to win. In the First Amendment context, a plaintiff must show that “a substantial number of [the law's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.” Americans for Prosperity Foundation v. Bonta, 594 U. S. 595, 615. So far in these cases, no one has paid much attention to that issue. Analysis and arguments below focused mainly on how the laws applied to the content-moderation practices that giant social-media platforms use on their best-known services to filter, alter, or label their users' posts, i. e., on how the laws applied to the likes of Facebook's News Feed and YouTube's homepage. They did not address the full range of activities the laws cover, and measure the constitutional against the unconstitutional applications. The proper analysis begins with an assessment of the state laws' scope. The laws appear to apply beyond Facebook's News Feed and its ilk. But it's not clear to what extent, if at all, they affect social-media giants' other services, like direct messaging, or what they have to say about other platforms and functions. And before a court can do anything else with these facial challenges, it must “determine what [the law] covers.” United States v. Hansen, 599 U. S. 762, 770. The next order of business is to decide which of the laws' applications violate the First Amendment, and to measure them against the rest. For the content-moderation provisions, that means asking, as to every covered platform or function, whether there is an intrusion on protected editorial discretion. And for the individualized-explanation provisions, it means asking, again as to each thing covered, whether the required disclosures unduly burden expression. See Zauderer , 471 U. S., at 651. Because this is “a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7, this Court cannot undertake the needed inquiries. And because neither the Eleventh nor the Fifth Circuit per-

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formed the facial analysis in the way described above, their decisions must be vacated and the cases remanded. Pp. 723–726.

(b) It is necessary to say more about how the First Amendment 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, whose decision rested on a serious misunderstanding of First Amendment precedent and principle. Pp. 726–743.

(1) The Court has repeatedly held that ordering a party to provide a forum for someone else's views implicates the First Amendment if, though only if, the regulated party is engaged in its own expressive activity, which the mandated access would alter or disrupt. First, in Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, the Court held that a Florida law requiring a newspaper to give a political candidate a right to reply to critical coverage interfered with the newspaper's “exercise of editorial control and judgment.” Id., at 243, 258. Florida could not, the Court explained, override the newspaper's decisions about the “content of the paper” and “[t]he choice of material to go into” it, because that would substitute “governmental regulation” for the “crucial process” of editorial choice. Id., at 258. The next case, Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S. 1, involved California's attempt to force a private utility to include material from a certain consumer-advocacy group in its regular newsletter to consumers. The Court held that an interest in “offer[ing] the public a greater variety of views” could not justify compelling the utility “to carry speech with which it disagreed” and thus to “alter its own message.” Id., at 11, n. 7, 12, 16. Then in Turner Broadcasting System, Inc. v. FCC , 512 U. S. 622, the Court considered federal “must-carry” rules, which required cable operators to allocate certain channels to local broadcast stations. The Court had no doubt the First Amendment was implicated, because the rules “interfere[d]” with the cable operators' “editorial discretion over which stations or programs to include in [their] repertoire.” Id., at 636, 643–644. The capstone of this line of precedents, Hurley v. Irish- American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, held that the First Amendment prevented Massachusetts from compelling parade organizers to admit as a participant a gay and lesbian group seeking to convey a message of “pride.” Id., at 561. It held that ordering the group's admittance would “alter the expressive content of the[ ] parade,” and that the decision to exclude the group's message was the organizers' alone. Id., at 572–574. From that slew of individual cases, three general points emerge. First, the First Amendment offers protection when an entity engaged

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in compiling and curating others' speech into an expressive product of its own is directed to accommodate messages it would prefer to exclude. Second, none of that changes just because a compiler includes most items and excludes just a few. It “is enough” for the compiler to exclude the handful of messages it most “disfavor[s].” Id., at 574. Third, the government cannot get its way just by asserting an interest in better balancing the marketplace of ideas. In case after case, the Court has barred the government from forcing a private speaker to present views it wished to spurn in order to rejigger the expressive realm. Pp. 727–733.

(2) “[W]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles” of the First Amendment “do not vary.” Brown v. Entertainment Merchants Assn., 564 U. S. 786, 790. And the principles elaborated in the above-summarized decisions establish that Texas is not likely to succeed in enforcing its law against the platforms' application of their content-moderation policies to their main feeds. Facebook's News Feed and YouTube's homepage present users with a continually updating, personalized stream of other users' posts. The key to the scheme is prioritization of content, achieved through algorithms. The selection and ranking is most often based on a user's expressed interests and past activities, but it may also be based on other factors, including the platform's preferences. Facebook's Community Standards and YouTube's Community Guidelines detail the messages and videos that the platforms disfavor. The platforms write algorithms to implement those standards—for example, to prefer content deemed particularly trustworthy or to suppress content viewed as deceptive. Beyond ranking content, platforms may add labels, to give users additional context. And they also remove posts entirely that contain prohibited subjects or messages, such as pornography, hate speech, and misinformation on certain topics. The platforms thus unabashedly control the content that will appear to users. Texas's law, though, limits their power to do so. Its central provision prohibits covered platforms from “censor[ing]” a “user's expression” based on the “viewpoint” it contains. Tex. Civ. Prac. & Rem. Code Ann. § 143A.002(a)(2). The platforms thus cannot do any of the things they typically do (on their main feeds) to posts they disapprove—cannot demote, label, or remove them—whenever the action is based on the post's viewpoint. That limitation profoundly alters the platforms' choices about the views they convey. The Court has repeatedly held that type of regulation to interfere with protected speech. Like the editors, cable operators, and parade organizers this Court has previously considered, the major social-media

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platforms curate their feeds by combining “multifarious voices” to create a distinctive expressive offering. Hurley, 515 U. S., at 569. Their choices about which messages are appropriate give the feed a particular expressive quality and “constitute the exercise” of protected “editorial control.” Tornillo, 418 U. S., at 258. And the Texas law targets those expressive choices by forcing the 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. In Hurley, the Court held that the parade organizers' “lenient” admissions policy did “not forfeit” their right to reject the few messages they found harmful or offensive. 515 U. S., at 569. Similarly here, that Facebook and YouTube convey a mass of messages does not license Texas to prohibit them from deleting posts they disfavor. Pp. 733–740.

(3) The interest Texas relies on cannot sustain its law. In the usual First Amendment case, the Court must decide whether to apply strict or intermediate scrutiny. But here, Texas's law does not pass even the less stringent form of review. Under that standard, a law must further a “substantial governmental interest” that is “unrelated to the suppression of free expression.” United States v. O'Brien, 391 U. S. 367, 377. Many possible interests relating to social media can meet that test. But Texas's asserted interest relates to the suppression of free expression, and it is not valid, let alone substantial. Texas has never been shy, and always been consistent, about its interest: The objective is to correct the mix of viewpoints that major platforms present. But a State may not interfere with private actors' speech to advance its own vision of ideological balance. States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. But the way the First Amendment achieves that goal is by preventing the government from “tilt[ing] public debate in a preferred direction,” Sorrell v. IMS Health Inc., 564 U. S. 552, 578–579, not by licensing the government to stop private actors from speaking as they wish and preferring some views over others. A State cannot prohibit speech to rebalance the speech market. That unadorned interest is not “unrelated to the suppression of free expression.” And Texas may not pursue it consistent with the First Amendment. Pp. 740–743. No. 22–277, 34 F. 4th 1196; No. 22–555, 49 F. 4th 439, vacated and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Sotomayor , Kavanaugh, and Barrett, JJ., joined in full, and in which Jackson, J., joined as to Parts I, II, and III–A. Barrett, J., filed

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a concurring opinion, post, p. 745. Jackson, J., filed an opinion concurring in part and concurring in the judgment, post, p. 748. Thomas, J., filed an opinion concurring in the judgment, post, p. 749. Alito , J., filed an opinion concurring in the judgment, in which Thomas and Gorsuch, JJ., joined, post, p. 766.

Henry C. Whitaker, Solicitor General of Florida, argued the cause for petitioners in No. 22–277. With him on the briefs were Ashley Moody , Attorney General, Daniel W. Bell and Jeffrey Paul DeSousa, Chief Deputy Solicitors General, Christopher J. Baum, Senior Deputy Solicitor General, Kevin A. Golembiewski and Evan Ezray , Deputy Solicitors General, Darrick W. Monson and Alison E. Preston, Assistant Solicitors General, Charles J. Cooper, David H. Thomp-son, Brian W. Barnes, and John D. Ohlendorf.

Paul D. Clement argued the cause for respondents in No. 22–277 and petitioners in No. 22–555. With him on the briefs in both cases were Erin E. Murphy and James Y . Xi. With him on the briefs in No. 22–555 were Scott A. Keller and Steven P . Lehotsky.

Solicitor General Prelogar argued the cause for the United States as amicus curiae urging affirmance in No. 22– 277 and reversal in No. 22–555. With her on the brief were Principal Deputy Assistant Attorney General Boynton, Deputy Solicitor General Fletcher , Colleen E. Roh Sinzdak, Mark R. Freeman, Daniel Tenny , and Daniel Winik.

Aaron L. Nielson, Solicitor General of Texas, argued the cause for respondent in No. 22–555. With him on the brief were Ken Paxton, Attorney General, Lanora C. Pettit, Principal Deputy Solicitor General, Michael R. Abrams and William F. Cole , Assistant Solicitors General, Coy Allen Westbrook, Assistant Attorney General, Brent Webster, First Assistant Attorney General, and Ryan S. Baasch, Chief, Consumer Protection Division.†

Jeffrey C. Mateer , David J. Hacker , and Jeremiah G. Dys; for the Heartland Institute by James R. Lawrence III; for iTexasPolitics, LLC, dba The Texan, et al. by Evan M. Goldberg; for Legal Scholars Adam Candeub et al. by Kenneth J. Weatherwax and Gregory R. Smith; for The Rutherford Institute by John W. Whitehead; for the World Faith Foundation by James L. Hirsen and Deborah J. Dewart; and for Eric Rasmusen by James Bopp, Jr. Briefs of amici curiae urging affirmance in No. 22–277 and reversal in No. 22–555 were filed in both cases for the American Jewish Committee by Michael J. Gottlieb and Aaron E. Nathan; for the Americans for Prosperity Foundation by Cynthia Fleming Crawford; for Article 19: Global Campaign for Free Expression et al. by Megan Coker and Kelli Bills; for the Cato Institute by Thomas A. Berry and Anastasia P . Boden; for the Center for Democracy & Technology by Andrew J. Pincus; for the Center for Growth and Opportunity et al. by Andrew C. Nichols; for the Chamber of Commerce of the United States of America by Michael R. Dreeben and Jennifer B. Dickey; for Chamber of Progress et al. by Mark W. Brennan and Joseph S. Miller; for the Developers Alliance et al. by Ari Holtzblatt and Hannah E. Gelbort; for Discord Inc. by Rebecca Tushnet; for Engine Advocacy by Benjamin W. Berkowitz; for the Foundation for Individual Rights and Expression by Robert Corn-Revere and Abigail E. Smith; for the International Center for Law & Economics by Constance H. Pfeiffer and Jason LaFond; for the Internet Society by Raechel Keay Kummer and James D. Nelson; for the Liberty Justice Center by Jacob Huebert and M. E. Buck Dougherty III; for the Media Law Resource Center, Inc., by George Freeman; for Professors of History by Theodore J. Boutrous, Jr., and Lee R. Crain; for Protect the First Foundation by Gene C. Schaerr, H. Christopher Bartolomucci, and Hannah C. Smith; for Public Knowledge by John Bergmayer; for the Reason Foundation et al. by Erik S. Jaffe; for Reddit, Inc., by Michael R. Huston; for the Reporters Committee for Freedom of the Press et al. by Bruce D. Brown and David D. Cole; for TechFreedom by Corbin K. Barthold; for the Trust & Safety Foundation by Ian C. Ballon, Lori Chang , and Bethany J. M. Pandher; for the Washington Legal Foundation by John M. Masslon II and Cory L. Andrews; for the Wikimedia Foundation by Kathleen R. Hartnett and Adam Gershenson; for Yelp Inc. by Anna-Rose Mathieson and Jocelyn Sperling; for Sen. Ben Ray Luján by J. Michael Showalter and Bradley S. Rochlen;

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for Christopher S. Yoo, pro se; and in No. 22–277 for the PEN American Center et al. by Lynn B. Oberlander , Joseph Slaughter , and Maxwell S. Mishkin. Jean-Paul Jassy and Michael A. Cheah filed a brief for In-ternet Works et al. as amici curiae urging affirmance in No. 22–277 and vacatur in No. 22–555.

Eric A. Hudson filed a brief for Keep the Republic as amicus curiae urging vacatur in both cases. Briefs of amici curiae were filed in both cases for the State of Missouri et al. by Andrew Bailey , Attorney General of Missouri, Joshua M. Divine , Solicitor General, Maria A. Lanahan, Deputy Solicitor General, and Caleb Rutledge and Bryce Beal, Assistant Attorneys General, by Dave Yost, Attorney General of Ohio, Michael Hendershot, Chief Deputy Solicitor General, Nicholas Cordova, Deputy Solicitor General, by Rusty D. Crandell and Linley Wilson, and by the Attorneys General for their respective States as follows: Steve Marshall of Alabama, Treg Taylor of Alaska, Tim Griffin of Arkansas, Brenna Bird of Iowa, Russell Coleman of Kentucky, Liz Murrill of Louisiana, Lynn Fitch of Mississippi, Austin Knudsen of Montana, Michael T. Hilgers of Nebraska, John M. Formella of New Hampshire, Drew H. Wrigley of North Dakota, Gentner Drummond of Oklahoma, Alan Wilson of South Carolina, Marty Jackley of South Dakota, Jonathan Skrmetti of Tennessee, Sean D. Reyes of Utah, and Jason Miy-ares of Virginia; for the State of New York et al. by Letitia James, Attorney General of New York, Barbara D. Underwood, Solicitor General, Ester Murdukhayeva, Deputy Solicitor General, and Sarah Coco , Assistant Solicitor General, and by the Attorneys General for their respective jurisdictions as follows: Kris Mayes of Arizona, Rob Bonta of California, Philip J. Weiser of Colorado, William Tong of Connecticut, Kathleen Jennings of Delaware, Brian L . Schwalb of the District of Columbia, Anne E. Lopez of Hawaii, Kwame Raoul of Illinois, Aaron M. Frey of Maine, Anthony G. Brown of Maryland, Andrea Joy Campbell of Massachusetts, Dana Nessel of Michigan, Keith Ellison of Minnesota, Aaron D. Ford of Nevada, Matthew J. Platkin of New Jersey, Joshua H. Stein of North Carolina, Ellen F. Rosenblum of Oregon, Peter F. Neronha of Rhode Island, Charity R. Clark of Vermont, Robert W. Ferguson of Washington, and Joshua L. Kaul of Wisconsin; for the American Center for Law and Justice by Jay Alan Sekulow , Stuart J. Roth, Jordan A. Sekulow , Colby M. May , Craig L. Parshall, and Walter M. Weber; for the Anti-Defamation League by Steven

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M. Freeman; for the Becket Fund for Religious Liberty by Eric C. Rass-bach and Mark L. Rienzi; for Bluesky et al. by Catherine R. Gellis; for the Center for American Liberty by Randall W. Miller and Harmeet K. Dhillon; for the Center for Business and Human Rights of the Leonard N. Stern School of Business at New York University by Timothy K. Gil-man; for the Center for Constitutional Jurisprudence by John C. Eastman and Anthony T. Caso; for the Center for Social Media and Politics at New York University et al. by Jacob M. Karr and Jason M. Schultz; for Children's Health Defense by Mary Holland; for the Digital Progress Institute by Joel Thayer; for Economists by Jennifer B. Tatel; for the Electronic Frontier Foundation et al. by David Greene , Thomas S. Leatherbury , and Christopher Hopkins; for the Electronic Privacy Information Center by Alan Butler; for First Amendment and Internet Law Scholars by G. S. Hans; for the Giffords Law Center to Prevent Gun Violence et al. by Douglas N. Letter, Shira Lauren Fieldman, and Kelly M. Percival; for the Goldwater Institute by Timothy Sandefur; for the Knight First Amendment Institute at Columbia University by Scott Wilkens, Ramya Krish-nan, Alex Abdo , and Jameel Jaffer; for the Lawyers' Committee for Civil Rights Under Law by Damon Hewitt, Jon Greenbaum, Dariely Rodri-guez, David Brody , Marc Epstein, Christopher M. Mason, and Seth A. Horvath; for the Marketplace Industry Association et al. by Eric B. Wolff ; for the Moderators of r/law and r/SCOTUS by Gabriel Latner; for Moms for Liberty et al. by Alan Gura and Endel Kolde; for National Security Experts by Mary B. McCord, pro se , Rupa Bhattacharyya, Kelsi Brown Corkran, and Christopher J. Wright; for the National Taxpayers Union Foundation by Tyler Martinez; for the Open Markets Institute by Jay L. Himes; for Former Representative Christopher Cox et al. by David M. Gossett, Adam S. Sieff, and Ambika Kumar; for Francis Fukuyama by Seth D. Greenstein and Robert S. Schwartz; for Eric Goldman by Michael S. Kwun; and for Richard L. Hasen et al. by Richard L. Hasen, pro se.

Richard Polk Lawson, Jessica Hart Steinmann, and John P . Coale filed a brief for Donald J. Trump as amicus curiae in No. 22–277. Lawrence J. Spiwak filed a brief for Phoenix Center for Advanced Legal & Economic Public Policy Studies urging reversal in No. 22–555. Briefs of amici curiae urging affirmance in No. 22–555 were filed for Law and History Scholars by Glenn E. Chappell, Hassan A. Zavareei, and Katherine Van Dyck; for the Life Legal Defense Foundation by Catherine Short and Sheila A. Green; for Students at Columbia Against Censorship

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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

by Marc A. Greendorfer; for Philip Hamburger by Jonathan F. Mitchell; for Sen. Josh Hawley, pro se ; and for David Mamet by Marc A. Greendorfer.

Briefs of amici curiae urging affirmance in No. 22–555 were filed in both cases for the Center for Renewing America by Richard A. Epstein; for Donald W. Landry by Joel B. Ard; and for Christos A. Makridis by Jonathan S. Goldstein and Shawn M. Rodgers.

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 Page Proof Pending Publication

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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 flailed 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 com-piling 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 Page Proof Pending Publication

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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.

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. Face-book users, for example, share more than 100 billion messages every day. See App. in No. 22–555, at 67a. And You- Tube sees more than 500 hours of video uploaded every minute. See ibid.

In the face of that deluge, the major platforms cull and organize uploaded posts in a variety of ways. A user does not see everything—even everything from the people she follows—in reverse-chronological order. The platforms will have removed some content entirely; ranked or otherwise prioritized what remains; and sometimes added warnings or labels. Of particular relevance here, Facebook and YouTube make some of those decisions in conformity with content-moderation policies they call Community Standards and Community Guidelines. Those rules list the subjects or messages the platform prohibits or discourages—say, pornography, hate speech, or misinformation on select topics. Page Proof Pending Publication

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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 de-fined expansively, that have annual gross revenue of over $100 million or more than 100 million monthly active users. Fla. Stat. § 501.2041(1)(g) (2023). 1 The statute restricts 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).

Soon after Florida and Texas enacted those statutes, Net- Choice 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 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. Page Proof Pending Publication

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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. Sa-lerno, 481 U. S. 739, 745 (1987); Washington State Grange , 552 U. S., at 449. In First Amendment cases, however, this Court has lowered that very high bar. To “provide[ ] breathing room for free expression,” we have substituted a less demanding though still rigorous standard. United States v. Hansen, 599 U. S. 762, 769 (2023). The question is whether “a substantial number of [the law's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.” Americans for Prosperity Foundation v. Bonta, 594 U. S. 595, 615 (2021); see Hansen, 599 U. S., at 770 (likewise asking whether the law “prohibits a substantial amount of protected speech relative to its plainly legitimate sweep”). So in this singular context, even a law with “a plainly legitimate sweep” may be struck down in its entirety. Page Proof Pending Publication

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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 Page Proof Pending Publication

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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 in fra , at 727–733. And for the individualized-explanation provisions, it means asking, again as to each thing covered, whether the required disclosures unduly burden expression. See Zauderer , 471 U. S., at 651. Even on a preliminary record, it is not hard to see how the answers might differ as between regulation of Facebook's News Feed (considered in the courts below) and, say, its direct messaging service (not so considered). Curating a feed and transmitting direct messages, one might think, involve Page Proof Pending Publication

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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.

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 Page Proof Pending Publication

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A

Despite the relative novelty of the technology before us, the main problem in this case—and the inquiry it calls for—

3Although 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 725. So our explanation of why Facebook and YouTube are engaged in expression when they make content-moderation choices in their main feeds should inform the courts' further consideration of that issue.

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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 Page Proof Pending Publication

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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 742, 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 Page Proof Pending Publication

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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 partici-pating unit affects the message,” said the Court, ordering the group's admittance would “alter the expressive content of the[ ] parade.” Hurley, 515 U. S., at 572–573. The 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 fip-side reason—because in those cases the compelled access did not affect the complaining party's own expression. First, in PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), the Court rejected a shopping mall's First Amendment challenge to a California law requiring it to allow members of the public to distribute handbills on its property. The mall owner did not claim that he (or the mall) was engaged in any expressive activity. 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 Page Proof Pending Publication

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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 Page Proof Pending Publication

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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 market-place of ideas. Of course, it is critically important to have a well-functioning sphere of expression, in which citizens have access to information from many sources. That is the whole project of the First Amendment. And the government can

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 Page Proof Pending Publication

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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 Face-book'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 Page Proof Pending Publication

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Beyond rankings lie labels. The platforms may attach “warning[s], disclaimers, or general commentary”—for example, informing users that certain content has “not been veri-fed 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 Page Proof Pending Publication

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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 entities6) from “censor[ing]” a “user's expression” based on its “viewpoint.” § 143A.002(a)(2); see supra, at 721. 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). 7 That is a long list of verbs, but it comes down to this: The platforms cannot do any of the things they typically do (on their main feeds) to posts they disapprove—cannot demote, label, or remove them—whenever the action is based on the

• support Nazi ideology; • advocate for terrorism; • espouse racism, Islamophobia, or anti-Semitism; • glorify rape or other gender-based violence; • encourage teenage suicide and self-injury; • discourage the use of vaccines; • advise phony treatments for diseases; • advance false claims of election fraud.

The list could continue for a while. 9 The point of it is not that the speech environment created by Texas's law is worse than the ones to which the major platforms aspire on their main feeds. The point is just that Texas's law profoundly alters the platforms' choices about the views they will, and will not, convey.

8 The Texas solicitor general explained at oral argument that the Texas law allows the platforms to remove “categories” of speech, so long as they are not based on viewpoint. See Tr. of Oral Arg. in No. 22–555, at 69–70; § 120.052 (Acceptable Use Policy). The example he gave was speech about Al-Qaeda. Under the law, a platform could remove all posts about Al-Qaeda, regardless of viewpoint. But it could not stop the “pro-Al- Qaeda” speech alone; it would have to stop the “anti-Al-Qaeda” speech too. Tr. of Oral Arg. in No. 22–555, at 70. So again, the law, as described by the solicitor general, prevents the platforms from disfavoring posts because they express one view of a subject. 9 Details on both the enumerated examples and similar ones are found in Facebook's Community Standards and YouTube's Community Guidelines. See https://transparency.meta.com/policies/community-standards; https:// support.google.com/youtube/answer/9288567.

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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 Page Proof Pending Publication

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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 Page Proof Pending Publication

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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 Page Proof Pending Publication

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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, Page Proof Pending Publication

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The Court's decisions about editorial control, as discussed earlier, make that point repeatedly. See supra, at 732–733. Again, the question those cases had in common was whether the government could force a private speaker, including a compiler and curator of third-party speech, to convey views it disapproved. And in most of those cases, the government defended its regulation as yielding greater balance in the marketplace of ideas. But the 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”).10

These are facial challenges, and that matters. To succeed on its First Amendment claim, NetChoice must show that

to local broadcast stations, passed First Amendment muster. See supra, at 729. But the interest there advanced was not to balance expressive content; rather, the interest was to save the local-broadcast industry, so that it could continue to serve households without cable. That interest, the Court explained, was “unrelated to the content of expression” 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. Page Proof Pending Publication

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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 infuencing 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 flavors and suppressing those it does not. And that is what the First Amendment protects all of us from. Page Proof Pending Publication

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It is so ordered.

Justice Barrett, concurring.

I join the Court's opinion, which correctly articulates and applies our First Amendment precedent. In this respect, the Eleventh Circuit's understanding of the First 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 iden-Page Proof Pending Publication

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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 736, n. 5. The First Amendment implications of the Florida and Texas laws might be different for that kind of algorithm. And what about AI, which is rapidly evolving? What if a platform's owners hand the reins to an AI tool and ask it simply to remove “hateful” content? If the AI relies on large 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 Pa-cifc Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S. 1, 16 (1986)). Corporations, which are composed of human beings with First Amendment rights, possess First Page Proof Pending Publication

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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-Page Proof Pending Publication

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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 723–724 (majority opinion); post, at 777–778 (Alito, J., concurring in judgment). The Eleventh Circuit flailed 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 745 (concurring opinion); see also ante, at 727–733 (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 Page Proof Pending Publication

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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) (Bran-deis, J., concurring). In my view, such restraint is warranted today.

Justice Thomas, concurring in the judgment.

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

I cannot agree, however, with the Court's decision to opine on certain applications of those statutes. The Court's 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 Page Proof Pending Publication

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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, Article III of the Constitution permits federal courts to exercise judicial power only over “Cases” and “Controversies.” Accordingly, federal courts can decide whether a statute is constitutional only as applied to the parties before them—they lack authority to deem a statute “facially” unconstitutional.

As Justice Alito explains, the trade associations have flailed to provide many of the basic facts necessary to evaluate their challenges to H. B. 20 and S. B. 7072. See post, at 786–793. I make two additional observations.

First, with respect to certain provisions of H. B. 20 and S. B. 7072, the Court assumes that the framework outlined Page Proof Pending Publication

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Second, the common-carrier doctrine should continue to guide the lower courts' examination of the trade associations' claims on remand. See post, at 782–783, and n. 17, 794 (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. 901, 903– 904 (2021) (Thomas, J., concurring in grant of certiorari). Moreover, “there is clear historical precedent for regulating transportation and communications networks in a similar manner as traditional common carriers” given their many similarities. Id., at 904. Though they reached different conclusions, both the Fifth Circuit and the Eleventh Circuit appropriately strove to apply the common-carrier doctrine in assessing the constitutionality of H. B. 20 and S. B. 7072 respectively. See 49 F. 4th 439, 469–480 (CA5 2022); Net-Page Proof Pending Publication

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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.

The opinions in these cases detail many of the considerable hurdles that currently preclude resolution of the trade associations' claims. See ante, at 723–724; ante, at 745–747 (Barrett, J., concurring); post, at 786–796 (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 Page Proof Pending Publication

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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 Liver-pool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885) (“[The Court] has no jurisdiction to pronounce any statute . . . irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies”). 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 Page Proof Pending Publication

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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. Sa-lerno, 481 U. S. 739, 745 (1987). In the First Amendment context, we have sometimes applied an even looser standard, called the overbreadth doctrine. The overbreadth doctrine requires a plaintiff to establish only that a statute “prohibits a substantial amount of protected speech,” “relative to [its] Page Proof Pending Publication

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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 nonadvisory 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 Page Proof Pending Publication

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Facial challenges also distort standing doctrine's redress-ability requirement. The Court has held that a plaintiff has standing to sue only when his “requested relief will redress the alleged injury.” Steel Co., 523 U. S., at 103. With a 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 long-standing 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. 1178, 1180–1182 (2020) (Gor-such, J., concurring in grant of stay); FDA v. Alliance for Hippocratic Medicine , 602 U. S. 367, 402 (2024) (Thomas, J., concurring).

Because deciding the constitutionality of a statute as 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, Page Proof Pending Publication

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Adjudicating facial challenges also intrudes upon powers reserved to the Legislative and Executive Branches and the States. When a federal court decides an issue unnecessary for resolving a case or controversy, the Judiciary assumes authority beyond what the Constitution granted. Supra, at 753–754. That necessarily alters the balance of powers: When one branch exceeds its vested power, it becomes stronger relative to the other branches. See Free 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.

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. Ash-croft, 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 appro-Page Proof Pending Publication

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In addition to their constitutional infirmities, facial challenges also create practical problems. The case-or-controversy requirement serves as the foundation of our ad-versarial system. Rather than “ `sit[ting] as self-directed boards of legal inquiry and research,' ” federal courts serve as “ `arbiters of legal questions presented and argued by the parties before them.' ” NASA v. Nelson, 562 U. S. 134, 147, n. 10 (2011) (quoting Carducci v. Regan, 714 F. 2d 171, 177 (CADC 1983) (opinion for the court by Scalia, J.)). This 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 Page Proof Pending Publication

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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

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 753–754. The Flounders were certainly familiar with alternative systems that provided for the free-float-ing 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 Flounders 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 Flounders created a Judiciary with “only the authority to resolve Page Proof Pending Publication

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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 753–754. And, in case after case that followed Marbury , the Court reiterated that federal courts have no authority to reach beyond the parties before them to facially invalidate a statute. 4

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”). Page Proof Pending Publication

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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.

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 754–761. Rather than perpetuate our mistakes, the Court should end them. “No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional 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 ap-

* * *

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 723–724, 743–744. But, while sidelining facial challenges provides some measure of relief, it ignores the real problem. Because federal courts are bound by Article III's case-or-controversy requirement, holding a statute unconstitutional as applied to nonparties is not simply disfavored—it exceeds the authority granted to federal courts. It is high time the Court reconsiders its facial challenge doctrine.

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

The holding in these cases is narrow: NetChoice flailed 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 Page Proof Pending Publication

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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.

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

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.) (find-ing that “[s]ocial media platforms have unfairly censored . . . Floridians”); H.

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 Insta-gram, but it may also reach e-commerce and other non-social-networking websites that allow users to leave reviews, ask and answer questions, or communicate with others online. These may include Uber, Etsy, PayPal, Yelp, Wikipedia, and Gmail. See, e. g., Tr. of Oral Arg. in No. 22–555, pp. 54–56, 69, 76–79, 155; Brief for Wikimedia Foundation as Amicus Curiae 6; Brief for Yelp Inc. as Amicus Curiae 4, n. 4.

To prevent covered 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 Page Proof Pending Publication

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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 arti-fcial 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 infuencing elections or distorting public discourse. To do this, it requires platforms to host candidates for public office and journalistic enterprises. 7

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

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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 § 230 of the Communications Decency Act of 1996. § 501.2041(9). Section 230(c)(2)(A) of that Act shields in-ternet platforms from liability for voluntary, good-faith efforts to restrict or remove content that is “obscene, lewd,

at least 100 hours of audio or video online and has at least 100 million annual viewers; (3) operates a cable channel that produces more than 40 hours of content per week to at least 100,000 subscribers; or (4) operates under a Federal Communications Commission broadcast license. Fla. Stat. § 501.2041(1)(d). Page Proof Pending Publication

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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 Net- Choice'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.

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 flailed 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.

1

Around the same time as the enactment of the Florida law, Texas adopted a similar measure, H.

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.

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), 143A.008. It contains a strong sever-ability provision, § 8(a), which reaches “every provision, section, subsection, sentence, clause, phrase, or word in th[e] Act, and every application of [its] provisions.”

2

As it did in the Florida case, NetChoice sought a preliminary injunction in federal court, claiming that H.

To clarify these and other “threshold issues,” Texas moved for expedited discovery. Id., Doc. 20, at 1. The District Court granted Texas's motion in part, but after one month of discovery, it sided with NetChoice and enjoined H. B. 20 in its entirety before it could go into effect. Texas appealed, arguing that despite the District Court's judgment to the contrary, “[l]aws requiring commercial entities to neutrally host speakers generally do not even implicate the First Amendment because they do not regulate the host's speech at all—they regulate its conduct.” Brief for Appellant in No. 21–51178 (CA5), p. 16. The State also emphasized Net- Choice's alleged failure to show that H. B. 20 was unconstitutional in even a “ `substantial number of its applications,' ” the “bare minimum” showing that NetChoice needed to Page Proof Pending Publication

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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.

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 inter-pretatio[n] of statutes' on the basis of factually barebones records.” Sabri v. United States, 541 U. S. 600, 609 (2004). They clash with the principle that courts should neither “ `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. Page Proof Pending Publication

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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

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 flailed 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 stipu-

15 See Reply Brief in No. 21–12355 (CA11), p. 35 (“Plaintiffs—in their facial challenge—have flailed 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. 37 (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. 14 (arguing that NetChoice flailed “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”).

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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.

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.

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, Page Proof Pending Publication

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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, Page Proof Pending Publication

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

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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 728. NetChoice describes this process as content “curation.” But whatever you call it, not all compilers do this, at least in a way that is inherently expressive. Some may serve as “passive receptacle[s]” of third-party speech or as “dumb pipes” 16 that merely emit what they are fed. Such entities communicate no message of their own, and 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

16 American Broadcasting Cos. v. Aereo, Inc., 573 U. S. 431, 458 (2014) (Scalia, J., dissenting). 17 The majority states that it is irrelevant whether “a compiler includes most items and excludes just a few.” Ante , at 732. That may be true if the compiler carefully reviews, edits, and selects a large proportion of the items it receives. But if an entity, like some “sort of community billboard, regularly carr[ies] the messages of third parties” instead of selecting only those that contribute to a common theme, then this information becomes highly relevant. PG&E , 475 U. S. 1, 23 (1986) (Marshall, J., concurring in judgment). Entities that have assumed the role of common carriers fall into this category, for example. And the States defend portions of their laws on the ground that at least some social-media platforms have taken on that role. The majority brushes aside that argument without adequate consideration.

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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.

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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 comports with the parade's theme. Id., at 560, 574. A parade comprising “unrelated segments” that lumber along together willy-nilly would likely not express anything at all. Id., at 576. And although “a narrow, 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 731–732.

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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 mili-Page Proof Pending Publication

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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

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 involv-ing core examples of expressive compilations, such as in PruneYard and FAIR , a compiler's First Amendment protection has very much turned on the risk of misattribution. 19 Contrary to the majority's suggestion, ante, at 740–741, this is not the only interest that Texas asserted. Texas has also invoked its interest in preventing platforms from discriminating against speakers who reside in Texas or engage in certain forms of off-platform speech. Brief for Re-

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

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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 Instagram, X, Pinterest, Reddit, Gmail, Uber, and other e-commerce websites. Id., at 69, 76; Brief for Respondents in No. 22–277, at 7, 38, 49. 20 But NetChoice has still not 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 12, n. 1. But in its brief in this Court, NetChoice told us that H. B. 20 also regulates “some of the Internet's most popular websites, including Facebook, Instagram, Pint-

spondent in No. 22–555, at 15. The majority opinion does not mention these features, much less the interests that Texas claims they serve. Texas also asserts an interest in preventing common carriers from 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. Page Proof Pending Publication

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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 WhatsApp25 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

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.

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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

appear. 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). Page Proof Pending Publication

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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 refect 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-

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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

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.

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] counter-speech” that “presents facts to correct misstatements” or

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 “ex-pertise, authoritativeness, and trustworthiness on a given topic.” 52

These disclosures suggest that platforms can say something about their content-moderation practices without en-abling malicious actors or disclosing proprietary information. They also suggest that not all platforms curate all third-party content in an inherently expressive way. Without more information about how regulated platforms moderate

For all these reasons, NetChoice flailed to establish whether the content-moderation provisions violate the First Amendment on their face.

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 727, 744, but that is not necessarily true. Especially in light of the wide reach of the Texas law, Net- Choice may still fall far short of establishing facial unconstitutionality—even if it is assumed for the sake of argument that the Texas law is unconstitutional as applied to Face-book's News Feed and YouTube's homepage.53

For this reason, the majority's “guidance” on this issue may well be 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

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 mes-

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 con-

56 T. Xu, AI Makes Decisions We Don't Understand—That's a Problem, (July 19, 2021), https:// builtin.com/artificial-intelligence/ai-right -explanation.

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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.

Just as NetChoice flailed 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 bur-de[n]” speech. 471 U. S., at 651. 57

For Zauderer purposes, a law is “unduly burdensome” if it threatens to “chil[l] protected commercial speech.” Ibid. Here, NetChoice claims that these disclosures have that 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

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. 23. But if YouTube uses automated processes to fag and remove these comments, it is not clear why having to disclose the bases of those processes would chill YouTube's speech. And even if having to explain each removal decision would unduly burden YouTube's First Amendment rights, the same does not necessarily follow with regard to all of NetChoice's members.

NetChoice's failure to make this broader showing is 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 algo -rithms.” 58 Moreover, as mentioned, many platforms are already providing similar disclosures pursuant to the European Union's Digital Services Act. Yet complying with that

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The only binding holding in these decisions is that Net- Choice has yet to prove that the Florida and Texas laws they challenged are facially unconstitutional. Because the majority opinion ventures far beyond the question we must decide, I concur only in the judgment. Page Proof Pending Publication

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

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