Contrived Distinctions: The Doctrine of Commercial Speech in First Amendment Jurisprudence

September 23, 1991 • Policy Analysis No. 161
By Jonathan W. Emord

There exists a tension in the law between speech rights and property rights. The former are given high constitutional protection, but the latter are afforded little, if any, protection. As Bernard H. Siegan explains in his seminal work, Economic Liberties and the Constitution, the law has shown little regard for property rights since 1937.[1] Since that time the Supreme Court has abdicated much of its authority to protect property rights and has condoned the expansion of state power over private property.

It should therefore come as no surprise that the Court has disdain for speech related to economic liberties. Indeed, the Court’s commercial speech jurisprudence is a striking anomaly in First Amendment law, for with the exception of obscenity and fighting words no other speech content is so disfavored by the Court. Despite its willingness to single out business and economic communication for disfavored treatment, the Court has never articulated a principled reason why discrimination against commercial speech content is consistent with freedom of speech.[2]

From 1942 until 1976 the Supreme Court denied speech it categorized as purely commercial any constitutional protection.[3] In 1976 the Court changed direction by holding that the simple advertisement “I will sell you X prescription drug at Y price” was protected by the First Amendment. The Court insisted, however, that there remained “commonsense differences between speech that does ‘no more than propose a commercial transaction’ … and other varieties.”[4] Since 1976 the Court has abandoned its decision to afford commercial speech greater First Amendment protection. It has elected to give such speech almost no protection and held, as it did in 1942, that the content of speech that proposes a commercial transaction, even when intertwined with speech about noncommercial concerns, is regulable.[5]

A close examination of the Supreme Court’s commercial speech doctrine reveals that it is unprincipled and draws within the regulatory reach of the state communication that under traditional First Amendment analysis would be protected from the state. Moreover, close scrutiny reveals that the doctrine is exceedingly fickle. The Court has not been able to define “commercial speech” unambiguously. Without a clear definition, the lower courts have been inconsistent in their application of the law.

Commercial speech jurisprudence has been in this baleful state for almost 50 years. A new treatment of the problem is long overdue. The Court should reconsider the matter in a serious and searching way and return to first principles to render the law coherent.

If it examines first principles, the Court will find that its commercial speech doctrine is a contrived distinction that has no sound basis in principle, law, or constitutional history. The Court will find that the integrity of the First Amendment can be maintained only if the level of protection for commercial speech is raised to that afforded political speech.

About the Author
Jonathan W. Emord