A New Architecture of Commercial Speech Law

By Fischette, Charles | Harvard Journal of Law & Public Policy, Spring 2008 | Go to article overview

A New Architecture of Commercial Speech Law


Fischette, Charles, Harvard Journal of Law & Public Policy


INTRODUCTION
I.   THE LINGERING PROBLEM OF COMMERCIAL
     SPEECH--THE MEANING OF CENTRAL HUDSON
II.  THE CONSTITUTIONAL CASE FOR PROTECTING
     COMMERCIAL SPEECH
     A. The Value of Commercial Speech
        1. The Democratic Rationale
        2. The Individual Rationale
     B. The Case Against Commercial Speech
        Regulation
     C. Summary
III. PROTECTING COMMERCIAL SPEECH
     A. The Problem--Legitimate Regulation
        and Unstructured Balancing
     B. R.A.V. v. City of St. Paul--A Proposal
        for Commercial Speech Regulation
CONCLUSION

INTRODUCTION

The commercial speech component of First Amendment doctrine is frequently considered an area in need of reform, and possibly even of demolition. The reasons advanced for protecting commercial speech often seem obscure. The Supreme Court, in a series of confusing and sometimes inconsistent opinions, (1) has not been very helpful in explaining such justifications. This Article offers a systematic defense of why commercial speech is deserving of First Amendment protection and how, with minimal doctrinal change, commercial speech law can be simplified and made coherent. Part I outlines the difficulties the Court has had in this area and explains why the question of justification for constitutional protection remains salient more than thirty years after constitutional protection for commercial speech first began.

Part II defends the general framework of commercial speech law; namely, that commercial speech is entitled to substantial but reduced protection under the First Amendment as a separate doctrinal category. This Article offers two independent but mutually reinforcing justifications for this framework. First, this Article argues that commercial speech furthers a variety of listener interests with which the First Amendment should be concerned. Second, even if one rejects the First Amendment principles that counsel in favor of protecting commercial speech as such, some justifications for regulation of any speech--most importantly, that speech can be regulated because listeners might come to agree with it--must be forbidden absent an especially compelling reason. (2) Such regulations would directly undermine the neutrality that the government must exercise toward the dissemination and discussion of ideas, and substitute the government's own judgment for that of individual citizens. (3)

Part III suggests that the Court has accidentally stumbled onto the correct treatment of commercial speech in another area. R.A.V. v. City of St. Paul (4) provides the appropriate schemata to protect commercial speech, subject to the state's legitimate interest in regulating speech attendant to economic transactions, and to preclude content-based or viewpoint-based regulations of disfavored speech. It achieves the former by requiring speech regulation to be based on the reason for the categorical exception--that is, the reason that commercial speech may be constitutionally treated differently (subject to other limited exceptions). (5) This assures that commercial speech regulations may exist only where the government can point to an interest related to the reason commercial speech is subject to less protection than core non-commercial speech. This R.A.V.-inspired structure serves the latter by eliminating any possibility of discrimination in the same way--thus, the only acceptable justifications for restrictions on commercial speech are ones related to the particular class of harms that commercial speech poses.

I. THE LINGERING PROBLEM OF COMMERCIAL SPEECH: THE MEANING OF CENTRAL HUDSON

History reveals deep divisions over the appropriate treatment of commercial speech, especially regarding application of the leading test developed in Central Hudson (6) and whether it provides appropriate guidance for courts. This Part provides a brief overview of the major commercial speech cases decided by the Supreme Court. …

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