4
MOODY v. NETCHOICE, LLC
Syllabus
message of “pride.” Id., at 561. It held that ordering the group’s admittance would “alter the expressive content of the[ ] parade,” and that
the decision to exclude the group’s message was the organizers’ alone.
Id., at 572–574.
From that slew of individual cases, three general points emerge.
First, the First Amendment offers protection when an entity engaged
in compiling and curating others’ speech into an expressive product of
its own is directed to accommodate messages it would prefer to exclude. Second, none of that changes just because a compiler includes
most items and excludes just a few. It “is enough” for the compiler to
exclude the handful of messages it most “disfavor[s].” Hurley, 515
U. S., at 574. Third, the government cannot get its way just by asserting an interest in better balancing the marketplace of ideas. In case
after case, the Court has barred the government from forcing a private
speaker to present views it wished to spurn in order to rejigger the
expressive realm. Pp. 13–19.
(2) “[W]hatever the challenges of applying the Constitution to
ever-advancing technology, the basic principles” of the First Amendment “do not vary.” Brown v. Entertainment Merchants Assn., 564
U. S. 786, 790. And the principles elaborated in the above-summarized
decisions establish that Texas is not likely to succeed in enforcing its
law against the platforms’ application of their content-moderation policies to their main feeds.
Facebook’s News Feed and YouTube’s homepage present users with
a continually updating, personalized stream of other users’ posts. The
key to the scheme is prioritization of content, achieved through algorithms. The selection and ranking is most often based on a user’s expressed interests and past activities, but it may also be based on other
factors, including the platform’s preferences. Facebook’s Community
Standards and YouTube’s Community Guidelines detail the messages
and videos that the platforms disfavor. The platforms write algorithms to implement those standards—for example, to prefer content
deemed particularly trustworthy or to suppress content viewed as deceptive. Beyond ranking content, platforms may add labels, to give
users additional context. And they also remove posts entirely that contain prohibited subjects or messages, such as pornography, hate
speech, and misinformation on certain topics. The platforms thus unabashedly control the content that will appear to users.
Texas’s law, though, limits their power to do so. Its central provision
prohibits covered platforms from “censor[ing]” a “user’s expression”
based on the “viewpoint” it contains. Tex. Civ. Prac. & Rem. Code Ann.
§143A.002(a)(2). The platforms thus cannot do any of the things they
typically do (on their main feeds) to posts they disapprove—cannot demote, label, or remove them—whenever the action is based on the