Cite as: 603 U. S. ____ (2024)
27
ALITO, J., concurring in judgment
range of topics.45 But while Facebook uses algorithms to
arrange and moderate its users’ posts, Reddit asserts that
its content is moderated by Reddit users, “not by centralized algorithms.” Brief for Reddit, Inc., as Amicus Curiae
2. If Reddit and other platforms entirely outsource curation
to others, they can hardly claim that their compilations express their own views.
Perhaps recognizing this, NetChoice argues in passing
that it cannot tell us how its members moderate content because doing so would embolden “malicious actors” and divulge “proprietary and closely held” information. E.g., Brief
for Petitioners in No. 22–555, at 11. But these harms are
far from inevitable. Various platforms already make similar disclosures—both voluntarily and to comply with the
European Union’s Digital Services Act46—yet the sky has
not fallen. And on remand, NetChoice will have the opportunity to contest whether particular disclosures are necessary and whether any relevant materials should be filed under seal.
Various NetChoice members already disclose in broad
strokes how they use algorithms to curate content. Many
platforms claim to use algorithms to identify and remove
——————
45 Community Standards, Facebook, https://transparency.meta.com/
policies/community-standards (“[Facebook] wants people to be able to
talk openly about the issues that matter to them, whether through written comments, photos, music, or other artistic mediums”); Brief for Reddit, Inc., as Amicus Curiae 12 (“[T]he Reddit platform as a whole accommodates a wide range of communities and modes of discourse”).
46 Comm’n Reg. 2022/2065, Art. 17, 2022 O. J. (L. 277) 51–52.
NetChoice does not dispute the States’ assertion that the regulated platforms are required to comply with this law. Compare Brief for Petitioners in No. 22–277, p. 49, with Reply Brief in No. 22–277, p. 24; Tr. of Oral
Arg. in No. 22–555, pp. 20–21. If, on remand, the States show that the
platforms have been able to comply with this law in Europe without having to forgo “exercising editorial discretion at all,” Brief for Respondents
in No. 22–277, p. 40, then that might help them prove that their disclosure laws are not “unduly burdensome” under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985).
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