2
MOODY v. NETCHOICE, LLC
BARRETT, J., concurring
those functions is complicated enough without simultaneously analyzing how it bears on a platform’s other functions—e.g., Facebook Messenger and Google Search—much
less to distinct platforms like Uber and Etsy. In fact, dealing with a broad swath of varied platforms and functions in
a facial challenge strikes me as a daunting, if not impossible, task. A function qualifies for First Amendment protection only if it is inherently expressive. Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc.,
515 U. S. 557, 568 (1995). Even for a prototypical socialmedia feed, making this determination involves more than
meets the eye.
Consider, for instance, how platforms use algorithms to
prioritize and remove content on their feeds. Assume that
human beings decide to remove posts promoting a particular political candidate or advocating some position on a
public-health issue. If they create an algorithm to help
them identify and delete that content, the First Amendment protects their exercise of editorial judgment—even if
the algorithm does most of the deleting without a person in
the loop. In that event, the algorithm would simply implement human beings’ inherently expressive choice “to exclude a message [they] did not like from” their speech compilation. Id., at 574.
But what if a platform’s algorithm just presents automatically to each user whatever the algorithm thinks the user
will like—e.g., content similar to posts with which the user
previously engaged? See ante, at 22, n. 5. The First
Amendment implications of the Florida and Texas laws
might be different for that kind of algorithm. And what
about AI, which is rapidly evolving? What if a platform’s
owners hand the reins to an AI tool and ask it simply to
remove “hateful” content? If the AI relies on large language
models to determine what is “hateful” and should be removed, has a human being with First Amendment rights
made an inherently expressive “choice . . . not to propound