Corporate First Amendment Rights and the SEC

By Nicholas Wolfson | Go to book overview

doctrine developed by the Court in its pre-Posadas opinions. This is similar to the Jackson and Jeffries position described earlier.

Tribe makes a number of arguments in rebuttal. He points out that the First Amendment protects speech. Hence the Constitution protects the marketplace in ideas, even ideas motivated by profit.148

Second, he argues that suppression of commercial speech will not protect the less advantaged from the rich and powerful, as presumably non-Lochner governmental power to regulate economic activity will so do.149 This argument is clearly based on an economic notion that relatively free advertising is advantageous to the consumer on a cost-benefit basis. Scholars such as Coase would argue for the same conclusion with respect to the advisability of regulating economic activity, however.

As we will see in chapter 4, Judge Posner finds the Rehnquist kind of argument (i.e., the inextricable relation of advertising and the product advertised) so appealing that he would probably favor a complete reversal of the Court's commercial speech doctrine.

An additional argument for the Tribe positions turns on the impossibility of limiting the Rehnquist approach. Virtually all economic activity is subject to government regulation under minimum rationality review.150 As I have pointed out elsewhere, virtually all so-called political debate involves economic interest of this or that group. Most so-called political speech relates to economic activity that can be severely regulated. The Rehnquist doctrine would, therefore, permit an enormous wedge for government intrusion into the freedom of speech.


NOTES
1.
For an excellent summary and synthesis of the various principles underlying the first amendment, see F. Schauer, Free Speech: A Philosophical Enquiry 3-86 ( 1982).
2.
T. Emerson, The System of Freedom of Expression 7 ( 1970).
3.
J. Milton, Areopagitica, A speech for the Liberty of Unlicensed Printing 45, with introduction and notes by H. B. Cotterill ( New York 1959).
4.
De Bondt and Thaler, Anomalies, a Mean-Reverting Walk Down Wall Street, 3 J. Econ. Perspective 189, 193 (Winter 1989).
5.
See Schauer at 80-85.
6.
Coase, The Market for Goods and the Market for Ideas, 64 Am. Econ. Rev. Papers & Proceedings 384, 389 ( 1974).
7.
Redish, The First Amendment in the Marketplace: Commercial Speech and the Values of Free Expression, 39 Geo. Wash. L. Rev. 429 ( 1971).
8.
Id. at 432. Quoting Pigou, The Economics of Welfare 196 ( 4th ed. 1962).
9.
Id. at 433. Quoting Stigler, The Economics of Information, 69 J. Pol. Econ. 213, 220 ( 1961).
10.
Id. at 433.
11.
Id. at 433. Quoting Stigler, The Economics of Information, 69 J. Pol. Econ. 213, 222 ( 1961).

-84-

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