Corporate First Amendment Rights and the SEC

By Nicholas Wolfson | Go to book overview

5
The First Amendment and the SEC

DIFFERENCES BETWEEN COMMERCIAL SPEECH AND POLITICAL, ARTISTIC SPEECH

Recap of the Traditional Legal Doctrine

Until fairly recently, in constitutional jurisprudence, what has come to be known as commercial speech had been excluded from the coverage of the First Amendment. Commercial speech, most narrowly construed, is any speech or publication that advertises a product or service for profit or business purposes1 Some authorities, however, assert a considerably broader definition of the concept. Commercial speech has been extensively regulated at the state and federal levels. For example, food and drug ads are subject to extensive regulation. The states and the federal government extensively regulate the speech and publications of corporations and other business entities.

The modern commercial speech doctrine began in 1942 with the Valentine v. Chrestensen case.2 In that litigation a businessman in New York City disseminated a leaflet that on one side advertised a business exhibition of a former navy submarine and on the other side contained a purportively po

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Portions of this chapter appeared in an earlier version in an article by the author entitled The First Amendment and the SEC, in 20 Conn. L. Rev. 265 ( 1988). The earlier materials have been extensively revised, reorganized, and rewritten for this book. The article was originally written for a Liberty Fund, Inc. conference on October 30-November 2, 1986. I thank the Law Review and the Liberty Fund for permission to use the materials in this book. The Liberty Fund conference was creatively administered by the Law and Economics Center of George Mason University.

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