Cite as: 603 U. S. ____ (2024)
13
Opinion of the Court
held, Texas’s interest in better balancing the marketplace
of ideas would satisfy First Amendment scrutiny. See 49
F. 4th, at 482. If we said nothing about those views, the
court presumably would repeat them when it next considers
NetChoice’s challenge. It would thus find that significant
applications of the Texas law—and so significant inputs
into the appropriate facial analysis—raise no First Amendment difficulties. But that conclusion would rest on a serious misunderstanding of First Amendment precedent and
principle. The Fifth Circuit was wrong in concluding that
Texas’s restrictions on the platforms’ selection, ordering,
and labeling of third-party posts do not interfere with expression. And the court was wrong to treat as valid Texas’s
interest in changing the content of the platforms’ feeds. Explaining why that is so will prevent the Fifth Circuit from
repeating its errors as to Facebook’s and YouTube’s main
feeds. (And our analysis of Texas’s law may also aid the
Eleventh Circuit, which saw the First Amendment issues
much as we do, when next considering NetChoice’s facial
challenge.) But a caveat: Nothing said here addresses any
of the laws’ other applications, which may or may not share
the First Amendment problems described below.3
A
Despite the relative novelty of the technology before us,
the main problem in this case—and the inquiry it calls for—
is not new. At bottom, Texas’s law requires the platforms
to carry and promote user speech that they would rather
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3 Although 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
11. 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.