Academic journal article The William and Mary Bill of Rights Journal

Commercial Speech and the Perils of Parity

Academic journal article The William and Mary Bill of Rights Journal

Commercial Speech and the Perils of Parity

Article excerpt

Existing First Amendment doctrine has for forty years evaluated regulations of commercial advertising under a so-called intermediate standard of review.1 Unlike in earlier times,2 much commercial advertising is now treated as speech subject to some protection under the First Amendment,3 but the degree of protection is less than that given to the political, ideological, and literary speech long understood to lie at the core of the First Amendment.

Although some commentators (including this one4) lament the inclusion of commercial advertising within the ambit of the First Amendment at all,5 it is too late in the day to expect a reversal of a doctrinal trend of increasing vintage. More interesting, perhaps, is the argument from the other direction, with some Supreme Court Justices and some commentators maintaining that there is no good reason to give now-covered commercial advertising a lesser degree of protection than that long available to core First Amendment communication.6 The goal of this Article is to address that claim, not so much by objecting to it, but by examining the implications of parity-the consequences of granting to commercial advertising a degree of protection that is commensurate with (or at least close to) the strict (and thus not intermediate) scrutiny available to much of the speech covered by the First Amendment.

I. HOW WE GOT HERE

It is doubtful that any likely readers of this Article will be unaware of the recent and not-so-recent history of commercial advertising7 and the First Amendment. Accordingly, little point would be served by still another recounting of that history. Nevertheless, a very brief summary will ensure that we all are on the same page and will set the stage for what is to come.

The prehistory of the commercial speech doctrine starts in 1942, with Valentine v. Chrestensen,8 the case in which a commercial (but not corporate, it should be noted9) distributor of advertising handbills claimed that the First Amendment protected his business advertising practices against regulation.10 In briefly rejecting his claim, the supreme Court made it clear that not only were his handbills not protected by the First Amendment, but also that the First Amendment was not even relevant to the question.11 In my preferred and more modern terminology, commercial advertising was treated as entirely outside the coverage of the First Amendment,12 and thus regulable under non-First Amendment-influenced rational basis standards.13

Some years later, commentators began to bridle at this approach to commercial advertising,14 with Martin Redish's 1971 article in the George Washington Law Review15 properly considered a major landmark in this trend. Redish, following and followed by others,16 insisted that there was no good reason to treat commercial advertising as a lesser form of speech under the First Amendment and that the time had come to reconsider Valentine.11 Shortly thereafter, Justice Stewart, dissenting in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations,18 argued on freedom of the press grounds that regulation of the advertising section of the newspaper was protected against what might otherwise be permissible antidiscrimination legislation.19 And two years later, the Court held in Bigelow v. Virginia20 that a state restriction on advertising for abortion services was impermissible under the Constitution.21 The Court announced in clear terms that the presence of speech in a commercial advertisement was not sufficient to deprive it of First Amendment protection,22 but it was unclear whether this was a pervasive holding about the First Amendment or whether the Court's conclusion and language were heavily influenced by the abortion context, the latter being a reasonable inference in light of the fact that Bigelow came only two years after Roe v. Wade.23

The intersection of scholarly commentary and increasingly relevant case law thus set the stage for a more frontal assault on commercial speech's First Amendment exile, an assault that reached fruition in Virginia State Board of Pharmacy v. …

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