Cite as: 603 U. S. ____ (2024)
3
Syllabus
tected editorial discretion. And for the individualized-explanation provisions, it means asking, again as to each thing covered, whether the
required disclosures unduly burden expression. See Zauderer, 471
U. S., at 651.
Because this is “a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7, this Court cannot undertake the
needed inquiries. And because neither the Eleventh nor the Fifth Circuit performed the facial analysis in the way described above, their
decisions must be vacated and the cases remanded. Pp. 9–12.
(b) It is necessary to say more about how the First Amendment relates to the laws’ content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below. That need
is especially stark for the Fifth Circuit, whose decision rested on a serious misunderstanding of First Amendment precedent and principle.
Pp. 12–29.
(1) The Court has repeatedly held that ordering a party to provide
a forum for someone else’s views implicates the First Amendment if,
though only if, the regulated party is engaged in its own expressive
activity, which the mandated access would alter or disrupt. First, in
Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, the Court held
that a Florida law requiring a newspaper to give a political candidate
a right to reply to critical coverage interfered with the newspaper’s
“exercise of editorial control and judgment.” Id., at 243, 258. Florida
could not, the Court explained, override the newspaper’s decisions
about the “content of the paper” and “[t]he choice of material to go into”
it, because that would substitute “governmental regulation” for the
“crucial process” of editorial choice. Id., at 258. The next case, Pacific
Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, involved
California’s attempt to force a private utility to include material from
a certain consumer-advocacy group in its regular newsletter to consumers. The Court held that an interest in “offer[ing] the public a
greater variety of views” could not justify compelling the utility “to
carry speech with which it disagreed” and thus to “alter its own message.” Id., at 11, n. 7, 12, 16. Then in Turner Broadcasting System,
Inc. v. FCC, 512 U. S. 622, the Court considered federal “must-carry”
rules, which required cable operators to allocate certain channels to
local broadcast stations. The Court had no doubt the First Amendment was implicated, because the rules “interfere[d]” with the cable
operators’ “editorial discretion over which stations or programs to include in [their] repertoire.” Id., at 636, 643–644. The capstone of this
line of precedents, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, held that the First Amendment prevented Massachusetts from compelling parade organizers to
admit as a participant a gay and lesbian group seeking to convey a