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.

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