10
MOODY v. NETCHOICE, LLC
Opinion of the Court
that issue. In the lower courts, NetChoice and the States
alike treated the laws as having certain heartland applications, and mostly confined their battle to that terrain. More
specifically, the focus was on how the laws applied to the
content-moderation practices that giant social-media platforms use on their best-known services to filter, alter, or label their users’ posts. Or more specifically still, the focus
was on how the laws applied to Facebook’s News Feed and
YouTube’s homepage. Reflecting the parties’ arguments,
the Eleventh and Fifth Circuits also mostly confined their
analysis in that way. See 34 F. 4th, at 1210, 1213 (considering “platforms like Facebook, Twitter, YouTube, and TikTok” and content moderation in “viewers’ feeds”); 49 F. 4th,
at 445, 460, 478, 492 (considering platforms “such as Facebook, Twitter, and YouTube” and referencing users’ feeds);
see also id., at 501 (Southwick, J., concurring in part and
dissenting in part) (analyzing a curated feed). On their way
to opposing conclusions, they concentrated on the same issue: whether a state law can regulate the content-moderation
practices used in Facebook’s News Feed (or near equivalents). They did not address the full range of activities the
laws cover, and measure the constitutional against the unconstitutional applications. In short, they treated these
cases more like as-applied claims than like facial ones.
The first step in the proper facial analysis is to assess the
state laws’ scope. What activities, by what actors, do the
laws prohibit or otherwise regulate? The laws of course differ one from the other. But both, at least on their face, appear to apply beyond Facebook’s News Feed and its ilk.
Members of this Court asked some of the relevant questions
at oral argument. Starting with Facebook and the other
giants: To what extent, if at all, do the laws affect their
other services, like direct messaging or events management? See Tr. of Oral Arg. in No. 22–555, pp. 62–63; Tr. of
Oral Arg. in No. 22–277, pp. 24–25; App. in No. 22–277,
pp. 129, 159. And beyond those social-media entities, what