4
MOODY v. NETCHOICE, LLC
BARRETT, J., concurring
arise in litigation that more thoroughly exposes the relevant facts about particular social-media platforms and
functions. The answers in any given case might cast doubt
on—or might vindicate—a social-media company’s invocation of its First Amendment rights. Regardless, the analysis is bound to be fact intensive, and it will surely vary from
function to function and platform to platform. And in a facial challenge, answering all of those questions isn’t even
the end of the story: The court must then find a way to
measure the unconstitutional relative to the constitutional
applications to determine whether the law “prohibits a substantial amount of protected speech relative to its plainly
legitimate sweep.” United States v. Hansen, 599 U. S. 762,
770 (2023) (internal quotation marks omitted).
A facial challenge to either of these laws likely forces a
court to bite off more than it can chew. An as-applied challenge, by contrast, would enable courts to home in on
whether and how specific functions—like feeds versus direct messaging—are inherently expressive and answer
platform- and function-specific questions that might bear
on the First Amendment analysis. While the governing
constitutional principles are straightforward, applying
them in one fell swoop to the entire social-media universe
is not.