Commercial Speech as Free Expression最新文献

False Commercial Speech and the First Amendment 虚假商业言论与第一修正案

Commercial Speech as Free Expression Pub Date : 2021-06-01 DOI: 10.1017/9781108277563.003

引用次数: 0

Conclusion 结论

Commercial Speech as Free Expression Pub Date : 2021-06-01 DOI: 10.1017/9781108277563.007

引用次数: 0

Scientific Expression and Commercial Speech 科学表达与商业言语

Commercial Speech as Free Expression Pub Date : 2021-06-01 DOI: 10.1017/9781108277563.006

引用次数: 0

The Right of Publicity, Commercial Speech, and the Equivalency Principle 形象权、商业言论权与等价原则

Commercial Speech as Free Expression Pub Date : 2021-06-01 DOI: 10.1017/9781108277563.004

引用次数: 0

Index 指数

Commercial Speech as Free Expression Pub Date : 2021-06-01 DOI: 10.1017/9781108277563.008

引用次数: 0

Commercial Speech and the Values of Free Expression 商业言论和言论自由的价值

Commercial Speech as Free Expression Pub Date : 2021-06-01 DOI: 10.1017/9781108277563.002

Martin H. Redish

{"title":"Commercial Speech and the Values of Free Expression","authors":"Martin H. Redish","doi":"10.1017/9781108277563.002","DOIUrl":"https://doi.org/10.1017/9781108277563.002","url":null,"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","PeriodicalId":424496,"journal":{"name":"Commercial Speech as Free Expression","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126215969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 18

Compelled Commercial Speech and the First Amendment 强迫商业言论和第一修正案

Commercial Speech as Free Expression Pub Date : 2018-07-30 DOI: 10.2139/SSRN.3223023

Martin H. Redish

{"title":"Compelled Commercial Speech and the First Amendment","authors":"Martin H. Redish","doi":"10.2139/SSRN.3223023","DOIUrl":"https://doi.org/10.2139/SSRN.3223023","url":null,"abstract":"Since initially extending First Amendment protection to commercial speech in 1976, the Supreme Court has devoted many pages in many decisions to determining the contours and scope of this protection. The Court has devoted the overwhelming portion of its attention, however, to determining the scope of First Amendment limitations on government suppression of commercial speech. Only rarely has the Court considered the constitutionality of First Amendment restrictions, if any, on compelled commercial speech, and when it has done so it has often written in confusing and seemingly inconsistent ways. This is so, even though the Court has spoken eloquently of the need to protect against compelled speech in the context of non-commercial expression. The purpose of this Article is to tackle the issue of compelled commercial speech head on, in order to determine under what circumstances it is constitutionally inappropriate for government to compel a commercial speaker to make statements the speaker does not wish to make. After reverse engineering the constitutional and democratic pathologies sought to be avoided by the prohibition on compelled non-commercial speech, this Article determines that many of those pathologies apply with equal force to compelled commercial speech, and therefore the First Amendment should, as a general matter, be construed to protect against compelled commercial speech. This does not mean that no circumstances exist in which government may compel commercial speech, however. In order to shape the proper theoretical and doctrinal framework, this Article establishes a system of qualifiers and disqualifiers. Initially, government must satisfy at least one of the two qualifiers in order to shift the constitutional default position that government may not interfere with communications between private speaker and private listener. Government must be using compelled speech either to (1) protect public health or safety, or (2) protect the consumer from economic harm due to intentionally or recklessly fraudulent statements. Even if the government satisfies one of those qualifiers, however, compelled speech will nevertheless be unconstitutional if it triggers one of the two disqualifiers: (1) the factual or scientific statements required to be conveyed by the commercial speaker are reasonably disputed by that speaker, or (2) the compelled speech effectively, albeit indirectly, interferes with the commercial speaker’s ability to convey its own message to the consumer. If either of these disqualifiers is present, the compelled speech triggers one or more of the underlying constitutional or democratic pathologies sought to be avoided by the extension of First Amendment protection to compelled expression. Finally, this Article considers the extent to which the First Amendment protection extended to compelled commercial and non-commercial speech should be deemed fungible. It concludes that at least in the abstract, they should be so viewed. However","PeriodicalId":424496,"journal":{"name":"Commercial Speech as Free Expression","volume":"107 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117256184","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2