Scholarly Evaluation of the Commercial Speech Doctrine
In this chapter we begin the discussion of some of the more influential modern scholarly commentators on the Court's commercial speech doctrine. Although categories can be misleading, it is fair to say that the commentators may be divided between exponents of modern economic analysis and thinkers who work in more traditional modes of legal discourse. In chapter 4 the former are discussed.
In this discussion it is impossible to proceed in depth without analyzing the principal reasons usually given for the First Amendment principle as it applies to political, artistic, or otherwise fully protected speech.1 These principles usually are presented as (1) the market for truth (i.e., discussion as a process for achieving truth) (2) the necessary relation between free speech and democracy, and (3) speech as essential for self expression, human dignity, or autonomy. Thomas Emerson has added a fourth, free speech as a vehicle for mediating peaceful change.2 The latter is closely related to number two above.
An initial question is our ability to distinguish the merits of protecting speech from government regulation, as contrasted to protecting conduct. If we cannot accomplish that philosophical goal, First Amendment theories based on the preeminent position of speech are in grave difficulty. Proof of the similarity of conduct and speech, however, does not necessarily mean that we protect speech less than currently protected. If the reasons for pro