30
MOODY v. NETCHOICE, LLC
ALITO, J., concurring in judgment
For example, the majority paints an attractive, though simplistic, picture of what Facebook’s News Feed and
YouTube’s homepage do behind the scenes.
Taking
NetChoice at its word, the majority says that the platforms’
use of algorithms to enforce their community standards is
per se expressive. But the platforms have refused to disclose how these algorithms were created and how they actually work. And the majority fails to give any serious consideration to key arguments pressed by the States. Most
notable is the majority’s conspicuous failure to address the
States’ contention that platforms like YouTube and Facebook—which constitute the 21st century equivalent of the
old “public square”—should be viewed as common carriers.
See Biden v. Knight First Amendment Institute at Columbia
University, 593 U. S. ___, ___ (2021) (Thomas, J., concurring) (slip op., at 6). Whether or not the Court ultimately
accepts that argument, it deserves serious treatment.
Instead of seriously engaging with this and other arguments, the majority rests on NetChoice’s dubious assertion
that there is no constitutionally significant difference between what newspaper editors did more than a half-century
ago at the time of Tornillo and what Facebook and YouTube
do today.
Maybe that is right—but maybe it is not. Before mechanically accepting this analogy, perhaps we should take a
closer look.
Let’s start with size. Currently, Facebook and YouTube
each produced—on a daily basis—more than four petabytes
(4,000,000,000,000,000 bytes) of data.54 By my calculation,
that is roughly 1.3 billion times as many bytes as there are
in an issue of the New York Times.55
——————
54 Breaking Down the Numbers: How Much Data Does the World Create Daily in 2024? Edge Delta (Mar. 11, 2024), https://www.
edgedelta.com/company/blog/how-much-data-is-created-per-day.
55 The average issue of the New York Times, excluding ads, contains
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