Over the past quarter century, industrial speech law and policy have converged on novel First Amendment issues about the regulation of the dominant Internet platforms that now intermediate many strains of American life. The Supreme Court’s enigmatic ruling in Moody v. NetChoice and NetChoice v. Paxton raised more questions than it answered, leaving lower courts, litigants, and scholars to puzzle through the significance of the Justices’ five dicta-laden opinions for the First Amendment and the future of Internet regulation. 

This Article takes a different path: It frames NetChoice as a telecom law First Amendment case. NetChoice’s reasoning rhymes with other leading First Amendment cases in telecom law’s history where procedural rigor (or lack thereof) has driven substantive outcomes. This Article’s detailed review of the canon of telecom First Amendment cases reveals the key, underappreciated role of telecom law’s institutions — particularly the Federal Communications Commission (FCC) — in the development of First Amendment jurisprudence. It highlights the Court’s historical reliance on the FCC’s technocratic development of regulatory regimes, which has lent essential insight and rigor to scrutiny of platform regulations. It also illuminates the iterative dialectic among the Court, the FCC, and Congress to refine statutes and rules after judicial review to avoid trenching on speech interests.

In doing so, this Article challenges conventional wisdom about key cases in the telecom canon, including Red Lion v. FCC, Miami Herald v. Tornillo, and the Turner Broadcasting saga. It argues that scholars have overemphasized First Amendment levels-of-scrutiny formalism and technological differences between industries — particularly broadcast and cable television, newspapers, and the Internet — in interpreting the telecom canon’s modern salience. Situating NetChoice in the telecom canon reveals a critical yet underappreciated thread: the quality of regulatory and legislative processes has long driven First Amendment outcomes. The recent decline in that process, exemplified by NetChoice, poses serious worries for the development of nuanced Internet law and policy.

Properly set in the telecom canon, NetChoice is not a signal of a new era of Internet First Amendment jurisprudence; it is a cry for help. The Court’s long-standing institutional partners in industrial speech jurisprudence have a historically low capacity to assist the Court — in part because of the Court’s own projects to dismantle the administrative state and accrete judicial power.

NetChoice sees the Court realizing that it lacks the technocratic chops to fill the role long played by the FCC. Worse, these chickens are coming home to roost as the Court’s historical iterative partnerships with Congress and diligent lower courts are becoming replaced by tense standoffs with eager yet often inexpert state legislatures and reactionary lower courts — particularly the Fifth Circuit. These new partners often are disinclined to heed the Court’s calls for nuance or even its authority and jurisprudence.

The future of a coherent, rigorous approach to the First Amendment’s application to industrial speech platforms is at risk. This Article argues that restoring the Court’s capacity to develop serious industrial First Amendment jurisprudence will require ceding power back to the federal administrative state and reestablishing functional relationships with Congress and the lower courts.