24
MOODY v. NETCHOICE, LLC
ALITO, J., concurring in judgment
and BeReal,28 and websites like Parler,29 which claim to engage in little or no content moderation at all. And Florida’s
law, which is even broader than Texas’s, plainly applies to
e-commerce platforms like Etsy that make clear in their
terms of service that they are “not a curated marketplace.”30
In First Amendment terms, this means that these laws—
in at least some of their applications—appear to regulate
the kind of “passive receptacle[s]” of third-party speech that
receive no First Amendment protection. Tornillo, 418 U. S.,
at 258. Given such uncertainty, it is impossible for us to
determine whether these laws have a “plainly legitimate
sweep.” Williams, 553 U. S., at 292; Washington State
Grange, 552 U. S., at 449.
2
Second, NetChoice has not established what kinds of content appear on all the regulated platforms, and we cannot
determine whether these platforms create an “inherently
expressive” compilation of third-party speech until we know
what is being compiled.
We know that social-media platforms generally allow
their users to create accounts; send direct messages
——————
28 BeReal, which appears to have enough monthly users to be covered
by the Texas law, allows users to share a photo with their friends once
during a randomly selected 2-minute window each day. Time To BeReal,
https://help.bereal.com/hc/en-us/articles/7350386715165--Time-to-BeReal
(last accessed Apr. 23, 2024). Twenty-four hours later, those photos disappear. Because BeReal posts thus appear and disappear “randomly,”
even the Eleventh Circuit would agree that BeReal likely is not an expressive compilation. 34 F. 4th, at 1214.
29 Community Guidelines, Parler, https://www.parler.com/communityguidelines (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).
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