2
MOODY v. NETCHOICE, LLC
THOMAS, J., concurring in judgment
whether each statute’s “full range of applications” are constitutional. See ante, at 10, 12. But, the Court repeats that
very same error. Out of the sea of “variegated and complex”
functions that platforms perform, ante, at 11, the Court
plucks out two (Facebook’s News Feed and YouTube’s
homepage), and declares that they may be protected by the
First Amendment. See ante, at 26 (opining on what the
“current record suggests”). The Court does so on a record
that it itself describes as “incomplete” and “underdeveloped,” ante, at 12, 20, and by sidestepping several pressing
factual and legal questions, see post, at 29–32 (ALITO, J.,
concurring in judgment). As JUSTICE ALITO explains, the
Court’s approach is both unwarranted and mistaken. See
ibid.
I agree with JUSTICE ALITO’s analysis and join his opinion in full. I write separately to add two observations on
the merits and to highlight a more fundamental jurisdictional problem. The trade associations have brought facial
challenges alleging that H. B. 20 and S. B. 7072 are unconstitutional in many or all of their applications. But, Article III of the Constitution permits federal courts to exercise
judicial power only over “Cases” and “Controversies.” Accordingly, federal courts can decide whether a statute is
constitutional only as applied to the parties before them—
they lack authority to deem a statute “facially” unconstitutional.
I
As JUSTICE ALITO explains, the trade associations have
failed to provide many of the basic facts necessary to evaluate their challenges to H. B. 20 and S. B. 7072. See post, at
22–29. I make two additional observations.
First, with respect to certain provisions of H. B. 20 and
S. B. 7072, the Court assumes that the framework outlined
in Zauderer v. Office of Disciplinary Counsel of Supreme
Court of Ohio, 471 U. S. 626 (1985), applies. See ante, at