Commercial Speech and the Values of Free Expression

Abstract

Over the last forty years, the Supreme Court has extended an ever-increasing level of First Amendment protection to commercial speech. Indeed, it is difficult to find a Supreme Court decision upholding governmental suppression of truthful commercial speech in the last twenty-five years. Yet the Court has continued to provide less protection for commercial speech than is given to traditionally protected categories such as political or artistic expression. Moreover, the scholarly community has, with only rare exception, been either grudging or downright hostile to extending constitutional protection to commercial advertising.Many scholars believe that protecting commercial speech trivializes what the First Amendment is truly about, reintroduces the threat to the smooth functioning of the regulatory system first presented by the specious and harmful pre-New Deal doctrine of economic substantive due process, and risks diluting the strong protection traditionally given to more valuable areas of expression. The goal of this book is to establish not only that these critiques of commercial speech protection are fallacious or misguided but also that the Supreme Court’s failure to provide to commercial speech a level of First Amendment protection equivalent to that afforded other categories of fully protected expression is irrational and indefensible. Acceptance of this First Amendment “equivalency principle,” however, will not dictate equivalent protection in all cases. Rather, it will only mean that the criteria employed