Department of Advertising

Commercial Speech & the First Amendment

In addition to the following list of articles, you can view the actual text of several Supreme Court decisions that are directly relevant to commercial speech.

BIBLIOGRAPHY:
As this web site develops, in the space below we will provide a bibliography of articles and books relevant to this topic. To the extent practical, bibliographic references will be annotated.

Anyone interested in submitting additional bibliographic material for this reference page, or for any of the others at this site, is welcome to send such material via e-mail to jef@mail.utexas.edu. Please type the references in the same format as is used here, and keep the annotations to a few sentences.

Commercial Speech Theory

Ronald K.L. Collins and David M. Skover (1993). Commerce & Communication. Texas Law Review, 71: 697-746.

Much advertising is of the nonrational, image, variety. There is something of a parasitic quality about such advertising. As a result, ours has become a commercial culture in a very intrinsic and pervasive sense. Historically, it was thought that the sole or primary enemy of free expression was the State. Today, the consequences of commercial communication reveal that the private captains of the advertising empire may prove to be an enemy of equal stature. But ultimately, it is impossible to disentangle commerce from communication and preserve America as we know it.

Alex Kozinsky and Stuart Banner (1993). The Anti-History and Pre-History of Commercial Speech. Texas Law Review, 71: 747-775.

We live in a material world. Whether you think this is good or bad depends largely on how certain you are that your tastes are superior to those of your neighbors. Although modern debate assumes that Valentine v. Chrestensen stood for the proposition that commercial speech is not deserving of First Amendment protection, the evidence suggests that was not necessarily the case. The origin of modern commercial speech doctrine lies in an odd confluence of circumstances, most of which have little to do with this current debate.

Rodney A. Smolla (1993). Information, Imagery, and the First Amendment: A Case for Expansive Protection of Commercial Speech. Texas Law Review, 71: 777-804.

The threats to public discourse posed by contemporary mass advertising are largely exaggerated. And the very "excesses" of modern advertising that might at first make it seem a likely candidate for heavy legal regulation are actually the attributes that most qualify it for the heightened constitutional protection we routinely grant other categories of speech. With the exception of obscenity, modern First Amendment doctrine does not require speech to demonstrate any redeeming social value as a predicate to its protection. Contrary to critical opinions, advertising really has very little impact on us. Many forces in this world combine to influence our personas, and modern mass advertising certainly is among them, but its pernicious influence on the making of any specific individual, if it could ever be documented at all, would surely prove infinitesimal.

Sut Jhally (1993). Commercial Culture, Collective Values, and the Future. Texas Law Review, 71: 805-814.

A commercially-dominated media system is unable to pose hard questions for fear of alienating advertisers. Those same advertisers are connecting powerful images of a deeply desired social life with commodities, thereby creating the cruel illusion that one is possible by purchase of the other. The stakes are too high for us to be bogged down in the prevailing nonsense about the marketplace of ideas and advertising as a form of information. It is time to put aside such ideologically inspired idiocy and deal with the real and pressing problems that face us as a species.

Leo Bogart (1993). Freedom to Know or Freedom to Say? Texas Law Review, 71: 815-818.

Albert P. Mauro, Jr. (1992). Commercial Speech after Posadas and Fox: A Rational Basis Wolf in Intermediate Sheep's Clothing. Tulane Law Review, 66: 1931-1969.

In recent years the Supreme Court has displayed deference to state legislatures in the area of advertising regulation. Justice Rehnquist, in particular, has shown little regard for advertising, and his decision in Posadas significantly weakened First Amendment protection for such speech. Fox continues this down-hill slide for advertising. And Justice Rehnquist's greater-lesser power argument could revoke all protection for commercial speech where a state may ban the activity altogether.

Alexander Kozinski and Stuart Banner (1990). Who's Afraid of Commercial Speech? Virginia Law Review, 76: 627-653.

The Supreme Court's policy of providing lesser protection for commercial speech is examined. Point-by-point this article counters the Court's arguments, thereby suggesting that commercial speech is indistinguishable from fully protected speech. It then goes on to conclude that this artificial distinction is dangerous, and could be used by government to suppress or control speech simply by classifying it as commercial.

David F. McGowan (1990). A Critical Analysis of Commercial Speech. California Law Review, 78: 359-448.

The Court has dealt inconsistently with several important aspects of the commercial speech doctrine. As presently construed there is no principled distinction, either in the cases or in the values implicated by the First Amendment, between commercial speech and other, similar speech that enjoys full First Amendment protection. Rather, the Court's definition rests upon an implicit mistrust of speech that leads in some fairly proximate way to a commercial transaction. The Court has never engaged in the type of analysis necessary to demonstrate that, as a matter of First Amendment theory and in light of First Amendment values, commercial speech is less valuable than other types of speech.

Todd J. Locher (1990). Board of Trustees of the State University of New York v. Fox: Cutting Back on Commercial Speech. Iowa Law Review, 75: 1335-1354.

The Supreme Court has inconsistently applied the Central Hudson test. Both the Posadas case and the Fox case substantially weakened protection for commercial speech. Under the new Fox standards, courts will find it much easier for regulations of commercial speech to withstand First Amendment challenges.

Donald B. Allegro and John D. LaDue (1989). Eimann v. Soldier of Fortune and "Negligent Advertising" Actions: Commercial Speech in an Era of Reduced First Amendment Protection. Notre Dame Law Review, 64: 157-170.

Between 1980 and 1986 the Court inconsistently applied the Central Hudson test, with the net result being a regression of First Amendment protection of commercial speech to its lowest level since Virginia Pharmacy. Considering the thin veil of constitutional protection presently afforded commercial speech, the news media and other publishers which rely on advertising as a primary revenue source understandably express concern about what the Eimann decision portends. Imposing such an onerous duty on publishers with respect to all advertisements would likely chill commercial expression through either the extensive costs of investigation or the threat of extensive litigation.

Barbara M. Mack (1988-89). Commercial Speech: A Historical Overview of its First Amendment Protections and an Analysis of its Future Constitutional Safeguards. Drake Law Review, 38: 59-73.

This article presents a historical review of cases from Valentine v. Chrestensen through Posadas. It concludes that the classification of speech as either commercial or noncommercial has been problematic, and questions whether the Court can continue to "engage in the charade of a bifurcated system of first amendment analysis based on an outdated Meiklejohnian theory."

Tom Gerety (1988). The Submarine, The Handbill, and the First Amendment. Cinncinati Law Review, 56: 1165-1172.

Commercial speech is not political speech, and cannot claim the same historical or philosophic purposes; but it is speech. Its censorship has political as well as economic costs. The survival of the commercial speech doctrine, as one of limited, or diluted, protection, is thus an experiment with one of our most important liberties.

Michael Gartner (1988). Remarks by Michael Gartner. Cinncinati Law Review, 56: 1173-1179.

"I believe, absolutely, that there should be no government restrictions on commercial speech and that any private restrictions on commercial speech should be no more or no less than those publishers and broadcasters place on noncommercial speech. . . . I would rather die of lung cancer than see my children lose their right to speak freely."

Frederick Schauer (1988). Commercial Speech and the Architecture of the First Amendment. Cinncinati Law Review, 56: 1181-1203.

Daniel Hays Lowenstein (1988). "Too Much Puff": Persuasion, Paternalism, and Commercial Speech. Cinncinati Law Review, 56: 1205-1249.

Richard M. Schmidt, Jr., and Robert Clifton Burns (1988). Proof or Consequences: False Advertising and the Doctrine of Commercial Speech. Cinncinati Law Review, 56: 1273-1294.

Nan Kalthoff McKenzie (1988). Ambiguity, Commercial Speech and the First Amendment. Cinncinati Law Review, 56: 1295-1316.

Ronald A. Cass (1988). Commercial Speech, Constitutionalism, Collective Choice. Cinncinati Law Review, 56: 1317-1382.

Kenneth Dau-Schmidt (1988). Comments on Commercial Speech, Constitutionalism, Collective Choice. Cinncinati Law Review, 56: 1383-1395.

Ronald D. Rotunda (1987). The Constitutional Future of the Bill of Rights: A Closer Look at Commercial Speech and State Aid to Religiously Affiliated Schools. North Carolina Law Review, 65: 917-934.

Posadas is just one example in a string of unprincipled Supreme Court decisions. While Justice Rehnquist claims to rely on Central Hudson, his decision undermined that precedent.

Donald E. Lively (1987). The Supreme Court and Commercial Speech: New Words with an Old Message. Minnesota Law Review, 72: 289-310.

Commercial speech has been devalued by the Supreme Court over the past decade. Courts tend to classify speech that has aspects of both commercial and noncommercial speech as the former. The logic used to diminish the value of commercial speech is misplaced. Instead of relying on this faulty logic, the Court should prohibit regulation where competitors, critics, or the government can present a contrasting viewpoint to correct any misimpressions caused by the commercial speech.

Todd F. Simon (1984-85). Defining Commercial Speech: A Focus on Process Rather Than Content. New England Law Review, 20: 215-245.

Steven Shiffrin (1983). The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment. Northwestern University Law Review, 78: 1212-1283.

The Court does not seem yet to appreciate the true nature of the commercial speech problem. Although commercial speech may on occasion have some political aspect, it rarely has a significant impact on our political system. Nonetheless, it is all but impossible to devise a meaningful distinction between commercial and other speech. Many people have an inherent dislike or distrust of the commercial, but in the end it is less than the distrust we place in allowing government to act as censor. In spite of that, we retain the impression that commercial speech is less valuable than non-commercial speech. But in the end, to the extent that we accept the subordinate position of commercial speech, we do not believe in the First Amendment.

Burt Neuborne (1980). A Rationale for Protecting and Regulating Commercial Speech. Brooklyn Law Review, 48: 437-462.

The essence of the First Amendment balancing analysis is an assessment of the degree of doubt that exists as to the true motive of the legislature. After all, the first amendment, at a minimum, stands for a prohibition of speech bans motivated by a desire to silence a speaker. While commercial speech is a part of economic activity, it must not be regulated as mere economic activity. If we allow that, political decisions to regulate economic activity will often be made indirectly by cutting off the information flow about the disfavored activity. This protects the hearer's interest as well as the speaker's. In effect, a commercial speaker has no First Amendment of his own, but rather borrows the interest of others, such as the hearer. Consequently, in the area of deceptive commercial speech there is no interest to borrow, and therefore no right to speak.

Thomas H. Jackson and John Calvin Jeffries, Jr. (1979). Commercial Speech: Economic Due Process and the First Amendment. Virginia Law Review, 65: 1-41.

Virginia Pharmacy was wrongly decided. The First Amendment guarantee of free speech and press protects only certain identifiable values, principally effective self-government and individual self-fulfillment. Commercial speech contributes to neither. Virginia Pharmacy resurrected economic due process in the ill-fitted garb of the First Amendment, thereby reconstituting the values of Lochner v. New York as components of free speech. But it is long settled that the government has complete power over production of a good and its terms of sales, even to the extent of banning a product altogether. This greater power surely includes the lesser power of banning commercial speech about such a product.

Daniel A. Farber (1979). Commercial Speech and First Amendment Theory. Northwestern University Law Review, 74: 372-408.

R. H. Coase (1977). Advertising and Free Speech. Journal of Legal Studies, 6: 1-34.

C. Edwin Baker (1976). Commercial Speech: A Problem in the Theory of Freedom. Iowa Law Review, 62: 1-56.

The commercial speech exception has continually eluded theoretical justification. However, given the existing form of social and economic relationships in the United States, a complete denial of first amendment protection for commercial speech is not only consistent with, but is required by, first amendment theory. The profit orientation represents a coercive influence that deprives the speaker of freedom. The domination of profit, a structurally required standard, breaks the connection between speech and any vision, or attitude, or value of the individual or group engaged in advocacy. Thus, the content and form of commercial speech cannot be attributed to individual value allegiances.

Commercial Speech in the Professions

Fred S. McChesney (1985). Commercial Speech in the Professions: The Supreme Court's Unanswered Questions and Questionable Answers. University of Pennsylvania Law Review, 134: 45-119.

The Supreme Court seems to value advertising more than other forms of promotion by professionals. Although the Court has acknowledged that the constitutional protection afforded commercial speech is dependent on its economic costs and benefits, the Court has failed to recognize the benefits of nonadvertising promotions. This article argues that, while the Court's view of such promotions is colored by its desire to control deception, deception is no more likely in promotions by professionals than in any other form of speech, and perhaps even less so.

� 1995, 1996, 1997 Jef I. Richards
Some material here may be subject to copyrights of other contributors.