Thursday, June 22, 2017

Commercial Speech and the Values of Free Expression

Over the last 40 years, the Supreme Court has extended an ever-increasing level of First Amendment protection to commercial speech. Indeed, it is difficult to find a Supreme Court decision upholding governmental suppression of truthful commercial speech in the last 25 years. 1 Yet the Court has continued to provide less protection for commercial speech than is given to traditionally protected categories such as political or artistic expression. Moreover, the scholarly community has, with only rare exception, been either grudging or downright hostile to extending constitutional protection to commercial advertising. Most, although not all, scholars believe that protecting commercial speech trivializes what the First Amendment is truly about, 2 reintroduces the threat to the smooth functioning of the regulatory system first presented by the specious and harmful pre-New Deal doctrine of economic substantive due process, 3 and risks diluting the strong protection traditionally given to more valuable areas of expression. 4
Commercial speech has become one of the most litigated and controversial areas of First Amendment protection. The controversy arises from fundamental misunderstandings of the ways in which commercial speech furthers the values of the First Amendment’s guarantee of free expression.
To understand the nature of the debate, it is necessary to understand how the Supreme Court has chosen to define the concept of commercial speech. The phrase does not include all expression concerning the relative merits of commercial products or services. Rather, the Court has confined the concept to speech that does no more than propose a commercial transaction. 5 Thus, speech either opposing a commercial purchase or neutrally describing the qualities of a commercial product or service receives full First Amendment protection, 6while speech that directly promotes a purchase receives a reduced level of protection. 7

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