Cite as: 603 U. S. ____ (2024)
33
ALITO, J., concurring in judgment
For Zauderer purposes, a law is “unduly burdensome” if
it threatens to “chil[l] protected commercial speech.” Ibid.
Here, NetChoice claims that these disclosures have that effect and lead platforms to “conclude that the safe course is
to . . . not exercis[e] editorial discretion at all” rather than
explain why they remove “millions of posts per day.” Brief
for Respondents in No. 22–277, at 39–40 (internal quotation
marks omitted).
Our unanimous agreement regarding NetChoice’s failure
to show that a sufficient number of its members engage in
constitutionally protected expression prevents us from accepting NetChoice’s argument regarding these provisions.
In the lower courts, NetChoice did not even try to show how
these disclosure provisions chill each platform’s speech. Instead, NetChoice merely identified one subset of one platform’s content that would be affected by these laws: billions
of nonconforming comments that YouTube removes each
year. 49 F. 4th, at 487; see also Brief for Appellees in
No. 21–12355 (CA11), p. 13. But if YouTube uses automated processes to flag and remove these comments, it is
not clear why having to disclose the bases of those processes
would chill YouTube’s speech. And even if having to explain
each removal decision would unduly burden YouTube’s
First Amendment rights, the same does not necessarily follow with regard to all of NetChoice’s members.
NetChoice’s failure to make this broader showing is especially problematic since NetChoice does not dispute the
States’ assertion that many platforms already provide a
notice-and-appeal process for their removal decisions. In
fact, some have even advocated for such disclosure requirements. Before its change in ownership, the previous Chief
Executive Officer of the platform now known as X went as
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accordingly forfeited—whether Zauderer applies here. See Brief for Appellants in No. 21–12355 (CA11), at 21; Brief for Appellees in No. 21–
12355 (CA11), p. 44.
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