20
MOODY v. NETCHOICE, LLC
ALITO, J., concurring in judgment
affected by the speech it [is] forced to accommodate.” FAIR,
547 U. S., at 63. In core examples of expressive compilations, such as a book containing selected articles, chapters,
stories, or poems, this requirement is easily satisfied. But
in other situations, it may be hard to identify any message
that would be affected by the inclusion of particular thirdparty speech.
Two precedents that the majority tries to downplay, if not
forget, are illustrative. The first is PruneYard, which I
have already discussed. The PruneYard Court rejected the
mall’s First Amendment claim because “[t]he views expressed by members of the public in passing out pamphlets
or seeking signatures for a petition [were] not likely [to] be
identified with those of the owner.” 447 U. S., at 87. And if
those who perused the handbills or petitions were not likely
to make that connection, any message that the mall owner
intended to convey would not be affected.
The decision in FAIR rested on similar reasoning. In that
case, the Court did not dispute the proposition that the law
schools’ refusal to host military recruiters expressed the
message that the military should admit and retain gays and
lesbians. But the Court found no First Amendment violation because, as in PruneYard, it was unlikely that the
views of the military recruiters “would be identified with”
those of the schools themselves, and consequently, hosting
the military recruiters did not “sufficiently interfere with
any message of the school.” 547 U. S., at 64–65; contra,
ante, at 25 (“[T]his Court has never hinged a compiler’s
First Amendment protection on the risk of misattribution.”).18
——————
18 To be sure, in Turner Broadcasting System, Inc. v. FCC, 512 U. S.
622, 655 (1994), we held that the First Amendment applied even though
there was “little risk��� of misattribution in that case. But that is only
because the claimants in that case had already shown that the Cable Act
affected the quantity or reach of the messages that they communicated
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