Cite as: 603 U. S. ____ (2024)
21
ALITO, J., concurring in judgment
B
A party that challenges government interference with its
curation of content cannot win without making the threepart showing just outlined, but such a showing does not
guarantee victory. To prevail, the party must go on and
show that the challenged regulation of its curation practices
violates the applicable level of First Amendment scrutiny.
Our decision in Turner makes that clear. Although the
television cable operators in that case made the showing
needed to trigger First Amendment scrutiny, they did not
ultimately prevail on their facial challenge to the Cable Act.
After a remand and more than 18 months of additional factual development, the Court held that the law was adequately tailored to serve legitimate and important government interests, including “promoting the widespread
dissemination of information from a multiplicity of
sources.” Turner Broadcasting System, Inc. v. FCC, 520
U. S. 180, 189 (1997). Here, the States assert a similar interest in fostering a free and open marketplace of ideas.19
C
With these standards in mind, I proceed to the question
——————
through “original programming” or television programs produced by others. Id., at 636 (internal quotation marks omitted). In cases not involving core examples of expressive compilations, such as in PruneYard and
FAIR, a compiler’s First Amendment protection has very much turned
on the risk of misattribution.
19 Contrary to the majority’s suggestion, ante, at 27, this is not the only
interest that Texas asserted. Texas has also invoked its interest in preventing platforms from discriminating against speakers who reside in
Texas or engage in certain forms of off-platform speech. Brief for Respondent in No. 22–555, at 15. The majority opinion does not mention
these features, much less the interests that Texas claims they serve.
Texas also asserts an interest in preventing common carriers from engaging in “ ‘invidious discrimination in the distribution of publicly available goods, services, and other advantages.’ ” Id., at 18. These are “compelling state interests of the highest order” too. Roberts v. United States
Jaycees, 468 U. S. 609, 624 (1984).
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