Corporate First Amendment Rights and the SEC

By Nicholas Wolfson | Go to book overview

sense, encapsulated the three principal arguments for the First Amendment: as a process for truth-seeking; as a surety for the expression of one's individuality, whether as speaker or as listener; and finally, as an assurance against government-overreaching, or bureaucratic orthodoxy.

It is also not too great an oversimplification to point out that the Court and some commentators have argued that First Amendment protection of commercial speech satisfies some or all of the above purposes or goals. The consumer gains information from the advertisement, retains the option of expressing his or her individuality through the use of ads to choose services and products, from medical and legal advice to beauty aids, and, with the assistance of expert advisors, winnows out the true from the false. As the Court noted in the leading commercial speech case, the First Amendment approach is "to assume that . . . information is not in itself harmful, that people will perceive their own best interests, if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them."26 The Court rejected a paternalistic attitude to commercial information: The choice "among these alternative approaches is not [the Court's] to make or the Virginia General Assembly's. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us."27 The Court also pointed out that "[s]o long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that these decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensible."28 We shall argue in this book that the Court is correct.

Commercial speech, as we have noted, receives less protection from the Court than political or artistic speech. The distinction between the two kinds of speech is less than clear. Whatever the treatment of commercial speech, we shall maintain that SEC-regulated speech is not "mere" commercial speech, but speech that deserves the full protection of the First Amendment.


NOTES
1.
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761 ( 1976).
2.
See J. Nowak, R. Rotunda, and J. Young Constitutional Law 909-24 ( 3d ed. 1986).
3.
J. S. Mill, "On Liberty" ( Currin V. Shields ed. 1956) ( 1st ed. London 1859) [herinafter "On Liberty"].
4.
G. Himmelfarb, On Liberty and Liberalism: The Case Of John Stuart Mill xxi ( 1974).
5.
"On Liberty" at 13.
6.
Id. at 98-99.
7.
Id. at 99.
8.
Id. at 64.

-5-

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Corporate First Amendment Rights and the SEC
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Introduction 1
  • Notes 5
  • 1- Commercial Speech Doctrine 7
  • Notes 37
  • 2- Sec Speech 45
  • Notes 58
  • 3- Scholarly Evaluation of The Commercial Speech Doctrine 63
  • Notes 84
  • 4- Economic Theory, Free Speech, And the Sec 91
  • Notes 107
  • 5- The First Amendment and The Sec 111
  • Notes 159
  • Bibliography 169
  • Index 173
  • About the Author 178
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