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MOODY v. NETCHOICE, LLC
Opinion of the Court
These years have brought a dizzying transformation in
how people communicate, and with it a raft of public policy
issues. Social-media platforms, as well as other websites,
have gone from unheard-of to inescapable. They structure
how we relate to family and friends, as well as to businesses, civic organizations, and governments. The novel
services they offer make our lives better, and make them
worse—create unparalleled opportunities and unprecedented dangers. The questions of whether, when, and how
to regulate online entities, and in particular the social-media
giants, are understandably on the front-burner of many legislatures and agencies. And those government actors will
generally be better positioned than courts to respond to the
emerging challenges social-media entities pose.
But courts still have a necessary role in protecting those
entities’ rights of speech, as courts have historically protected traditional media’s rights. To the extent that socialmedia platforms create expressive products, they receive
the First Amendment’s protection. And although these
cases are here in a preliminary posture, the current record
suggests that some platforms, in at least some functions,
are indeed engaged in expression. In constructing certain
feeds, those platforms make choices about what third-party
speech to display and how to display it. They include and
exclude, organize and prioritize—and in making millions of
those decisions each day, produce their own distinctive compilations of expression. And while much about social media
is new, the essence of that project is something this Court
has seen before. Traditional publishers and editors also select and shape other parties’ expression into their own curated speech products. And we have repeatedly held that
laws curtailing their editorial choices must meet the First
Amendment’s requirements. The principle does not change
because the curated compilation has gone from the physical
to the virtual world. In the latter, as in the former, government efforts to alter an edited compilation of third-party