More Protection for Commercial Speech

Article excerpt

The Supreme Court made it clear recently that commercial speech deserves more constitutional protection than it has had. But it can't make up its collective mind about how much more.

In 44 Liquormart Inc. vs. Rhode Island, the court unanimously struck down a state law that prohibited liquor stores from advertising prices. But no five justices could agree on a single legal test.

Justice John Paul Stevens was correct in saying that the court should be particularly skeptical of bans on commercial speech that "suppress truthful, nonmisleading information" about legal products for paternalistic purposes. Under that reasoning, Missouri's restrictions on price advertising for acoholic beverages are probably also unconstitutional.

But just how high the Supreme Court eventually sets the bar for regulation of commercial speech is critical. If the bar is too high, it could tie the hands of the Clinton administration in banning cigarette advertising aimed at children and could even upset the current ban on te levised ads.

The roots of commercial speech reach back at least to Benjamin Franklin's explanation of his reasons for printing an ad for voyages to Barbados. But it was not until the 1970s that the Supreme Court gave commercial speech constitutional protection. …