Cite as: 603 U. S. ____ (2024)
29
ALITO, J., concurring in judgment
These disclosures suggest that platforms can say something about their content-moderation practices without enabling malicious actors or disclosing proprietary information. They also suggest that not all platforms curate all
third-party content in an inherently expressive way. Without more information about how regulated platforms moderate content, it is not possible to determine whether these
laws lack “a ‘ “plainly legitimate sweep.” ’ ” Washington
State Grange, 552 U. S., at 449.
For all these reasons, NetChoice failed to establish
whether the content-moderation provisions violate the
First Amendment on their face.
D
Although the only question the Court must decide today
is whether NetChoice showed that the Florida and Texas
laws are facially unconstitutional, much of the majority
opinion addresses a different question: whether the Texas
law’s content-moderation provisions are constitutional as
applied to two features of two platforms—Facebook’s News
Feed and YouTube’s homepage. The opinion justifies this
discussion on the ground that the Fifth Circuit cannot apply
the facial constitutionality test without resolving that question, see, e.g., ante, at 13, 30, but that is not necessarily
true. Especially in light of the wide reach of the Texas law,
NetChoice may still fall far short of establishing facial unconstitutionality—even if it is assumed for the sake of argument that the Texas law is unconstitutional as applied to
Facebook’s News Feed and YouTube’s homepage.53
For this reason, the majority’s “guidance” on this issue
may well be superfluous. Yet superfluity is not its most
egregious flaw. The majority’s discussion also rests on
wholly conclusory assumptions that lack record support.
——————
53 This problem is even more pronounced for the Florida law, which
covers more platforms and conduct than the Texas law.
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