12
MOODY v. NETCHOICE, LLC
Opinion of the Court
If so, regulation of those diverse activities could well fall on
different sides of the constitutional line. To decide the facial challenges here, the courts below must explore the laws’
full range of applications—the constitutionally impermissible and permissible both—and compare the two sets.
Maybe the parties treated the content-moderation choices
reflected in Facebook’s News Feed and YouTube’s homepage as the laws’ heartland applications because they are the
principal things regulated, and should have just that
weight in the facial analysis. Or maybe not: Maybe the parties’ focus had all to do with litigation strategy, and there is
a sphere of other applications—and constitutional ones—
that would prevent the laws’ facial invalidation.
The problem for this Court is that it cannot undertake
the needed inquiries. “[W]e are a court of review, not of first
view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005).
Neither the Eleventh Circuit nor the Fifth Circuit performed the facial analysis in the way just described. And
even were we to ignore the value of other courts going first,
we could not proceed very far. The parties have not briefed
the critical issues here, and the record is underdeveloped.
So we vacate the decisions below and remand these cases.
That will enable the lower courts to consider the scope of
the laws’ applications, and weigh the unconstitutional as
against the constitutional ones.
III
But it is necessary to say more about how the First
Amendment relates to the laws’ content-moderation provisions, to ensure that the facial analysis proceeds on the
right path in the courts below. That need is especially stark
for the Fifth Circuit. Recall that it held that the content
choices the major platforms make for their main feeds are
“not speech” at all, so States may regulate them free of the
First Amendment’s restraints. 49 F. 4th, at 494; see supra,
at 8. And even if those activities were expressive, the court