Commercial Speech and the Unconstitutional Conditions Doctrine: A Second Look at "The Greater Includes the Lesser"

Abstract

The Supreme Court's commercial speech jurisprudence is widely viewed as a mess. Although a majority of the Court, and most academic commentators, seemingly believe that regulations of paradigmatically commercial speech ought not be subject to strict scrutiny, the Justices are unable to provide either a compelling defense of the particular brand of intermediate scrutiny to which such regulations are presently subject, or a coherent definition of the expression that falls into the "commercial speech" category. This article argues that the Supreme Court's 1986 decision in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, furnishes the key to a rational reformulation of commercial speech doctrine. In Posadas, a bare majority of the Court voted to upheld a wholesale ban on casino advertising enacted by the Puerto Rico legislature, reasoning that "the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling". But scholars savaged this reasoning, and the Court disavowed it ten years later, in 44 Liquormart, Inc. v. Rhode Island. The article seeks to demonstrate that, in repudiating Posadas so totally, the Court erred. To be sure, Posadas's assertion that the casino advertising ban followed "necessarily" from the permissibility of a ban on casino gambling reflects bad logic and worse law. But the case-specific intuitions underlying Posadas - namely, that the advertising ban was constitutional, and that it was constitutional in large part precisely because Puerto Rico could have prohibited casino gambling - were very probably right. Indeed, viewing the commercial speech problem through the lens of the unconstitutional conditions doctrine reveals that the greater-includes-the-lesser inference has an important role to play. It bears emphasis, though, that the inference plays a role only when we correctly identify precisely what is the greater power and what is the lesser. Furthermore, even when properly understood, the inference has only a role to play; it is not dispositive. In other words, the critics of Posadas have erred in frequently misconstruing precisely what lesser power Posadas said flowed from the supposedly "greater" power to ban the commercial activity, whereas the Posadas majority erred in assuming that the lesser power necessarily followed. Once the greater/lesser thesis is more carefully articulated and its proper scope more precisely delimited, we are in position to do more than simply craft a more sensible commercial speech doctrine. Rather, this rehabilitation of Posadas points the way toward a significant revision of First Amendment doctrine generally. This article concludes by exploring how a more nuanced, multi-part test for content-based regulations of speech can result in significant latitude for government regulation of (some sorts of) commercial speech, even without requiring different doctrinal categories.