Academic journal article Harvard Law Review

Dissent, Corporate Cartels, and the Commercial Speech Doctrine

Academic journal article Harvard Law Review

Dissent, Corporate Cartels, and the Commercial Speech Doctrine

Article excerpt

"We are ... clear that the Constitution imposes no such ... restraint on government as respects purely commercial advertising." (1) With that single sentence in Valentine v. Chrestensen, (2) the Supreme Court not only created the category of commercial speech--nowhere to be found in the Constitution--but also declared that such speech was beyond the reach of the First Amendment. (3) Valentine was not the Court's finest moment. Justice Douglas, who joined the majority in Valentine, later characterized the decision as "almost offhand" and incapable of "surviv[ing] reflection." (4)

Despite its brevity (5) and lack of profundity, however, Valentine usefully demonstrates two essential points about commercial speech. For one, the Valentine Court's quick dismissal of the First Amendment claim reflects the intuition that commercial speech should not be entitled to full constitutional protection. To borrow a phrase from Justice Stevens, "few of us would march our sons and daughters off to war to preserve the citizen's right" to watch Super Bowl commercials. (6) At the same time, however, scholars have largely failed to develop a theory that both adequately defines commercial speech and justifies increased government regulation of it. The interplay between these two dynamics--the intuition that commercial speech should warrant less constitutional protection than other forms of speech, particularly political speech, and the failure to adequately justify that intuition--has made commercial speech doctrine one of the most conceptually thorny areas of First Amendment law.

The result of this theoretical underdevelopment has been doctrinal incoherence. (7) Less than a year after Valentine, in Murdock v. Pennsylvania, (8) the Court backtracked from its rash pronouncement and indicated that, as Professor Laurence Tribe explains, "commercial speech must receive some protection where the primary motive of the individual appeared noncommercial despite the solicitation of money." (9) A generation later, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., (10) the Court finally held that the First Amendment applies to commercial speech. (11) However, the Court maintained that commercial speech was entitled to a "different degree of protection" than other forms of speech. (12)

This holding left two issues in its wake, one old and one new. Because commercial speech is a unique First Amendment category, the Court continues to have to draw a line between commercial and noncommercial speech--a task with which the Court has "repeatedly struggled." (13) In addition, the Court must now identify the type of government interests it will require to justify regulation of commercial speech. With no coherent theory as to why commercial speech should be protected differently than other kinds of speech, the Court has struggled to deal with these issues.

This Note proposes a new focus for the commercial speech debate--a focus that aims to provide some traction on these twin issues. Corporations represent large concentrations of communicative power in today's society, and, as a result, there are many "speech markets" where commercial speech is not adequately countered. This is particularly true when the interests of corporations align and encourage cartel-like behavior. Drawing on dissent-based free speech theories, this Note argues that governments should be freer to regulate commercial speech when that speech is not adequately "checked" in the marketplace of ideas. This distinction between "self-regulating" commercial speech and "non-self-regulating" commercial speech should influence the decision as to when regulation of commercial speech is appropriate, as well as the decision as to what level of scrutiny courts should apply to government regulations of commercial speech. Applying this distinction may be particularly appropriate in the realm of commercial speech because advances in marketing and information science have made identifying the distinction easier in this context than in other speech arenas. …

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