A Justice's Surprise That Has Stood Its Ground: The Enduring Value of the Commercial Speech Doctrine's Powellian Balance

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Abstract

One of the most important concepts of modern commercial speech related to advertising, characterized as the "Powellian balance," resulted in a compromise between those who thought commercial expression should receive little or no First Amendment protection and those who argued that it receive the same expansive protection accorded to political expression. The private papers of Justice Lewis F. Powell, Jr. reveal the remarkable degree to which he maintained a deep commitment to balancing competing interests in shaping the commercial speech doctrine. The central argument of this monograph is that Powell's "middle way" can be employed to best promote today's vital and complex societal interests.

Before Lewis F. Powell, Jr. could use "Justice" before his name, the corporate attorney wrote an opinion for the U.S. Chamber of Commerce that was a virtual battle cry for maximizing business clout in the media and in the courts. Those who read the once secret and widely influential memorandum were later surprised in the early spring of 1980 when Justice Powell wrote the majority opinion in the most important commercial speech case to that time or since - most anticipated a ruling more unequivocally advantageous to business interests.

After a decade on the Court, Justice Powell had seven justices who had expressed support in conference for striking down the advertising regulation that had been challenged in the case on First Amendment grounds. Quite arguably, he could have found a way to do not only that but to do so in a manner that would have placed commercial speech on equal footing with the broader constitutional protections of political speech - or at least something much closer. Indeed, he could have sought to sweep away the doctrinal distinctions the Court had long maintained that kept commercial advertising relatively less protected from regulation by the First Amendment.

Instead, Justice Powell poured considerable labors into firmly and enduringly embedding those distinctions in the case law while paradoxically, to many, doing much the same thing to promote broad protections for commercial speech. Furthermore, based on what the historical record reveals of his intentions, he pulled it off. In doing so he hammered into place a challenging, often maddening, and much challenged judicial tool for maintaining balance between two fiercely competing societal interests. The first time Justice Powell employed it, he himself found it agonizing to apply in practice. Many scholars and jurists have argued since that it is too difficult, inconsistent, ineffective, and so on. Yet well into the twenty-first century, Justice Powell's creation endures. In terms of societal interests, this monograph proposes that it is a good thing that it does.

Introduction

It is almost a half-century since the development of the modern First Amendment doctrine on commercial speech that began in the United States Supreme Court. It is now possible to place the considerable changes wrought by that process in fuller theoretical and historical context. The central argument of this monograph is that the contentious debate over the Court's jurisprudence regarding constitutional protection for advertising can be moved forward through enhanced understanding of its anchoring in broader, time-tested wisdom on how to best promote vital but complex societal interests. Such an understanding offers considerable ground for resolution between the divided camps of scholars who argue, often ideologically, either that commercial expression should receive little or no First Amendment protection, or that it should receive the same expansive protection accorded to political expression and thus be essentially unburdened from any regulation. Considering the subject in context to a long view of human experience advances significant support for historically grounded principles of sound business law and practice over ideology, principles that stand in contrast to the hazards of ideologically driven imbalance in economic affairs more broadly. …