The Demise of a Workable Commercial Speech Doctrine: Dangers of Extending First Amendment Protection of Commercial Disclosure Requirements

By Sweetland, Caren Schmulen | Texas Law Review, December 1997 | Go to article overview

The Demise of a Workable Commercial Speech Doctrine: Dangers of Extending First Amendment Protection of Commercial Disclosure Requirements


Sweetland, Caren Schmulen, Texas Law Review


I. Introduction

When the Supreme Court's decision in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.1 expanded the First Amendment's protection of speech to encompass pure commercial speech, Justice Rehnquist warned that the Court would soon be sliding down a slippery slope.2 Rehnquist feared that overextending First Amendment protection to commercial speech would destroy "the possibility of understandable and workable differentiations between protected speech and unprotected speech."3

Despite Rehnquist's premonition, the Supreme Court managed to develop a workable commercial speech doctrine in which First Amendment protection was extended to speech in the commercial context, but the historical distinctions between commercial and noncommercial speech were respected and maintained.4 The Court did not "equate commercial and noncommercial speech for First Amendment purposes" when it acknowledged that commercial speech is entitled to protection; rather, it reasoned that the distinctions between the two categories of speech justify subjecting governmental regulations of commercial speech to a review less strict than that applied to regulations of political speech.5 The Court recognized that the interests implicated in the commercial sphere are profit-based and, arguably, less substantial than those the First Amendment traditionally protects; therefore, the lesser protection afforded commercial speech is "commensurate with its subordinate position in the scale of First Amendment values. "6 Furthermore, the Court found justification for subjecting regulations of commercial speech to a lesser scrutiny on the grounds that the government historically has been free to regulate commercial transactions.7 The Court also developed a commercial speech jurisprudence which recognized that not all commercial speech regulations are the same. The Court deemed that complete suppression of commercial speech was the most dangerous of such regulations and, therefore, entitled to greater First Amendment scrutiny than other restrictions of the right to speak in the commercial context.8 The Court warned that "special dangers" attend blanket bans on commercial speech because they unjustly prohibit speech in a paternalistic attempt to "protect" consumers by keeping commercial information from them.9 At the opposite end of the commercial speech spectrum are commercial disclosure requirements, the least restrictive form of commercial speech regulations and the subject of this Note. The Court acknowledged that there are "material differences between disclosure requirements and outright prohibitions on speech."10 Unlike complete suppressions of commercial speech, commercial disclosure requirements encourage the free flow of consumer information in the marketplace, which is consistent with the original purpose behind expanding the First Amendment to encompass commercial speech. The Court reasoned that because the speaker's interest in withholding commercial information from the consumer is "minimal,"11 commercial disclosure requirements are subjected to a less exacting constitutional scrutiny.12 The lower level of protection afforded commercial speech and the recognition of the differences inherent in the types of commercial speech regulations enabled the Court to strike a delicate balance-adequately protecting commercial speech interests while remaining sensitive to the need for governmental regulation to protect the consumer.

Currently, however, a new trend in the commercial speech dialogue threatens to disrupt this balance and realize Rehnquist's prediction. Members of both the judiciary and the academy argue that there are no proper bases for distinguishing commercial from noncommercial speech, proposing that all protected speech be subjected to equal First Amendment protection.13 These proponents of abolishing the traditional distinction between commercial and noncommercial speech justify their position by arguing not only that the text of the First Amendment does not distinguish between the commercial and the noncommercial, but also that the Framers of the Constitution failed to make the distinction. …

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The Demise of a Workable Commercial Speech Doctrine: Dangers of Extending First Amendment Protection of Commercial Disclosure Requirements
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