Protector of Commercial Speech Stepping Down
Hernandez, Debra Gersh, Editor & Publisher
Supreme Court Justice Harry Blackmun is best known as author of Roe vs. Wade, but he also is renowned for his role in decisions protecting commercial free speech rights; he was a late bloomer in his support for the print press
SUPREME COURT JUSTICE Harry Blackmun, who at age 85 announced he will be stepping down from the bench, is best known as the author of the controversial Roe vs. Wade decision, which said a woman's right to privacy protects her decision to have an abortion.
But Blackmun also is known for his role in decisions protecting the rights of commercial speech.
In the 1976 case of Virginia State Board of Pharmacy vs. Virginia Citizens Consumer Council Inc., Blackmun wrote the majority ruling that commercial speech does enjoy constitutional protection.
"What is at issue," he wrote, "is whether a state may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and recipients.
"Reserving other questions, we conclude that the answer to this one is in the negative."
The court, however, also held that commercial speech was not quite equal to political speech and could be regulated if it were false or misleading, for example.
"Some forms of commercial speech regulation are surely permissible," he wrote.
The following year, Blackmun again wrote for the majority in Bates vs. State Bar of Arizona, which examined the constitutionality of a state ban on advertising by lawyers.
Again, the court determined that the advertising in question could not be suppressed though it could be regulated.
"In holding that advertising by attorneys may not be subjected to blanket suppression and that the advertisement at issue is protected, we, of course, do not hold that advertising by attorneys may not be regulated in any way," Blackmun wrote.
Allowable restrictions would include those on false or misleading ads; time, place and manner of advertising; and ads for illegal transactions.
The Bates case did not examine such advertising in the broadcast media.
In one of the most important commercial speech cases of the 1980s, Central Hudson Gas & Electric Corp. vs. Public Service Commission, Blackmun did not write the majority decision but did weigh in with a concurring statement.
The majority determined that the "state must assert a substantial interest to be achieved by restrictions on commercial speech" and set up a four-point test.
In his concurrence, Blackmun agreed that scrutiny of commercial speech is appropriate when designed to protect consumers but not when it is designed "to suppress information about a product in order to manipulate a private economic decision that the state cannot or has not regulated or outlawed directly."
However, protecting commercial speech can be a double-edged sword, warned Duke University Law School professor William Van Alstyne.
Blackmun's "most notable contribution in the First Amendment area surely was in the zeal of his commitment to protection of commercial speech, virtually as far as political speech," Van Alstyne commented.
"Many would celebrate that as a big contribution, but there is risk and it tends to be one you encounter along the way with some of his work," he said.
To the extent that commercial speech is protected similarly to political speech, the opposite also can apply, and political speech can be cut back to the level of commercial speech rights, Van Alstyne said. "If you have a common rule for both, I can see where you can water down political speech," he said. "It has its darker possibilities.
"I think Justice Blackmun's contributions have been notable, but they're subject to some reserve and doubt," Van Alstyne added.
Blackmun also commented on press cases regarding other issues before the court, although rarely did he pen the majority opinion. …