Cite as: 603 U. S. ____ (2024)
17
ALITO, J., concurring in judgment
about the poets and poems that most deserve the attention
of their anticipated readers. Forcing the editors to exclude
or include a poem could alter the expression that the editors
wish to convey.
Not all compilations, however, have this expressive characteristic. Suppose that the head of a neighborhood group
prepares a directory consisting of contact information submitted by all the residents who want to be listed. This directory would not include any meaningful expression on the
part of the compiler.
Because not all compilers express a message of their own,
not all compilations are protected by the First Amendment.
Instead, the First Amendment protects only those compilations that are “inherently expressive” in their own right,
meaning that they select and present speech created by
other persons in order “to spread [the compiler’s] own message.” FAIR, 547 U. S., at 66; Pacific Gas & Elec. Co. v.
Public Util. Comm’n of Cal., 475 U. S. 1, 10 (1986) (PG&E)
(plurality opinion). If a compilation is inherently expressive, then the compiler may have the right to refuse to accommodate a particular speaker or message. See Hurley,
515 U. S., at 573. But if a compilation is not inherently expressive, then the government can require the compiler to
host a message or speaker because the accommodation does
not amount to compelled speech. Id., at 578–581.
To show that a hosting requirement would compel speech
and thereby trigger First Amendment scrutiny, a claimant
must generally show three things.
1
First, a claimant must establish that its practice is to exercise “editorial discretion in the selection and presentation” of the content it hosts. Arkansas Ed. Television
Comm’n v. Forbes, 523 U. S. 666, 674 (1998); Hurley, 515
U. S., at 574; ante, at 14. NetChoice describes this process
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