26
MOODY v. NETCHOICE, LLC
Opinion of the Court
such misattribution). Yet all those entities, the Court held,
were entitled to First Amendment protection for refusing to
carry the speech. See supra, at 14–16. To be sure, the
Court noted in PruneYard and FAIR, when denying such
protection, that there was little prospect of misattribution.
See 447 U. S., at 87; 547 U. S., at 65. But the key fact in
those cases, as noted above, was that the host of the thirdparty speech was not itself engaged in expression. See supra, at 16–17. The current record suggests the opposite as
to Facebook’s News Feed and YouTube’s homepage. When
the platforms use their Standards and Guidelines to decide
which third-party content those feeds will display, or how
the display will be ordered and organized, they are making
expressive choices. And because that is true, they receive
First Amendment protection.
C
And once that much is decided, the interest Texas relies
on cannot sustain its law. In the usual First Amendment
case, we must decide whether to apply strict or intermediate scrutiny. But here we need not. Even assuming that
the less stringent form of First Amendment review applies,
Texas’s law does not pass. Under that standard, a law must
further a “substantial governmental interest” that is “unrelated to the suppression of free expression.” United States
v. O’Brien, 391 U. S. 367, 377 (1968). Many possible interests relating to social media can meet that test; nothing said
here puts regulation of NetChoice’s members off-limits as
to a whole array of subjects. But the interest Texas has
asserted cannot carry the day: It is very much related to the
suppression of free expression, and it is not valid, let alone
substantial.
Texas has never been shy, and always been consistent,
about its interest: The objective is to correct the mix of
speech that the major social-media platforms present. In
this Court, Texas described its law as “respond[ing]” to the