16
MOODY v. NETCHOICE, LLC
ALITO, J., concurring in judgment
III
I therefore turn to the question whether NetChoice established facial unconstitutionality, and I begin with the
States’ content-moderation requirements. To show that
these provisions are facially invalid, NetChoice had to
demonstrate that they lack a plainly legitimate sweep under the First Amendment. Our precedents interpreting
that Amendment provide the numerator (the number of unconstitutional applications) and denominator (the total
number of possible applications) that NetChoice was required to identify in order to make that showing. Estimating the numerator requires an understanding of the First
Amendment principles that must be applied here, and I
therefore provide a brief review of those principles.
A
The First Amendment protects “the freedom of speech,”
and most of our cases interpreting this right have involved
government efforts to forbid, restrict, or compel a party’s
own oral or written expression. Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U. S. 205,
213 (2013); Wooley v. Maynard, 430 U. S. 705, 714 (1977);
West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642
(1943). Some cases, however, have involved another aspect
of the free speech right, namely, the right to “presen[t] . . .
an edited compilation of speech generated by other persons”
for the purpose of expressing a particular message. See
Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, Inc., 515 U. S. 557, 570 (1995). As used in this
context, the term “compilation” means any effort to present
the expression of others in some sort of organized package.
See ibid.
An example such as the famous Oxford Book of English
Poetry illustrates why a compilation may constitute expression on the part of the compiler. The editors’ selection of
the poems included in this volume expresses their view
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