Corporate First Amendment Rights and the SEC

By Nicholas Wolfson | Go to book overview
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mercial transaction. That commercial transaction, however, is the hiring of the attorney so as to receive the advice that is protected by the First Amendment. This utter confusion, at least as I see it, demonstrates the difficulty of distinguishing, in any coherent manner, between economically motivated speech and economically motivated speech that proposes a "commercial transaction." All economically motivated speech is designed to accomplish down the road a commercial transaction. But because so much of political and artistic speech is economically motivated, the broader definition of commercial speech as economically motivated speech would include too much. Hence the Court must usually limit the definition to the direct advertisement of a product or a service for a profit. But where the service is itself speech, the narrower definition begins to break down. If the product involves symbolic speech, something that may depend on the elusive motives of the buyer (or seller), the narrower definition also begins to break down.


NOTES
1.
Valentine v. Chrestensen, 316 U.S. 52, 54 ( 1942).
2.
Redish, The Frist Amendment in the Market Place: Commercial Speech and the Values of Free Expression, 39 Geo. Wash. L. Rev. 429, 450 ( 1971).
3.
341 U.S. 622 ( 1951).
4.
Id. at 642.
5.
319 U.S. 141 ( 1943).
6.
341 U.S. at 643.
7.
376 U.S. 254 ( 1964).
8.
Id. at 266.
9.
413 U.S. 376 ( 1973). Justice Powell's opinion for the majority was joined by Justices Brennan, White, Marshall, and Rehnquist. Chief Justice Burger and Justices Douglas, Stewart, and Blackmun each filed dissenting opinions.
10.
Id. at 385.
11.
Id. at 385.
12.
Id.
13.
Id.
14.
Id.
15.
Id.
16.
Id. at 388.
17.
Id. at 389.
18.
Id. at 401, n. 6. The Justice was citing Justice Douglas in his concurring opinion in Cammarano v. United States, 358 U.S. 498, 574 ( 1959).
19.
Id. at 402 and n. 7.
20.
Id. at 398.
21.
Id. at 393.
22.
421 U.S. 809 ( 1975).
23.
Id. at 812,
24.
Id. at 821.
25.
Id. at 822.

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