Business Blogs and Commercial Speech: A New Analytical Framework for the 21st Century

• Date: 01 March 2007
• DOI: http://doi.org/10.1111/j.1744-1714.2007.00032.x
• Author: Robert Sprague
• Published date: 01 March 2007

Business Blogs and Commercial

Speech: A New Analytical Framework

for the 21st Century

Robert Sprague

n

I. INTRODUCTION

This article analyzes free speech rights applied to businesses in light of the

rise in popularity and influence of Internet Web logs, commonly referred

to as ‘‘blogs.’’ A substantial amount of business-related dialogue is begin-

ning to occur on blogs and the number of blogs sponsored by businesses is

growing. This increase raises questions about the level of constitutional

protection afforded to information contained in the blogs. Speech by busi-

nesses has generally been regarded as commercial speech because it has

traditionally taken the form of directly promoting a product or service by

providing information about that product or service. Modern marketing

strategies and recent technological developments, such as blogs, are trans-

forming the nature of commercial speech. Businesses now often commu-

nicate with their customers without providing any specific information

regarding their products or services. Although commercial speech has re-

ceived limited constitutional protection since 1975,

1

the commercial

speech doctrine has not effectively evolved beyond the notion that speech

by businesses is advertising subject to regulation. As the Second Circuit

Court of Appeals noted, ‘‘Supreme Court decisions from which the

modern commercial speech doctrine has evolved . . . have created some

r2007, Robert Sprague

Journal compilation r2007, Academy of Legal Studies in Business

127

American Business Law Journal

Volume 44, Issue 1, 127–159, Spring 2007

n

Assistant Professor, Department of Management and Marketing, University of Wyoming

College of Business, Laramie, Wyoming. I would like to thank Michael Thatcher for his ex-

cellent assistance in performing research for this article.

1

See Bigelow v. Virginia, 420 U.S. 809 (1975). The development of the commercial speech

doctrine is discussed at Part III infra.

uncertainty as to the degree of protection for commercial advertising that

lacks precise informational content.’’

2

Modern businesses are using Inter-

net technologies, particularly blogs, to engage in dialogues with the public.

The key issue is whether all speech by a business should continue to be

relegated to the commercial speech doctrine.

Part II of this article traces the recent evolution and growth of blogs,

in terms of both number and influence. It includes a discussion of how

businesses are using this growing medium to dialogue with customers in

nontraditional manners. Part III traces the history and development of the

commercial speech doctrine and includes a discussion of the varying ap-

proaches and opinions of the U.S. Supreme Court during the doctrine’s

development. Part IV analyzes the shortcomings of the commercial speech

doctrine in light of current business speech strategies. Part V proposes a

modification to the commercial speech doctrine’s current analytical frame-

work. As communications technologies evolve, particularly with the growth

of blogs, more and more businesses are engaging in speech that is truly not

commercial in nature. The proposed modified analytical framework rec-

ognizes this evolution. It separates commercial speech into three categor-

ies: (1) traditional advertising, (2) public relations, and (3) social

commentary. The third category, social commentary, is rapidly evolving

with new communications technologies. The current commercial speech

doctrine does not adequately protect such speech. Under the proposed

modified analytical framework, speech by businesses which contains solely

social commentary would be removed from the traditional commercial

speech analysis and afforded the same constitutional protection as would

be provided if the speech were from an individual.

II. THE EVOLUTION AND GROWTH OF BLOGS

Blogs are a particular type of Web site in which an author, or several au-

thors, post messages in reverse chronological order. Blogs originated as

personal diaries in which their authors shared their thoughts and opinions

with the online community. An early article discussing blogs described

them as ‘‘personal Web sites operated by individuals who compile

chronological lists of links to stuff that interests them, interspersed with

2

Bad Frog Brewery, Inc. v. New York State Liquor Auth., 134 F.3d 87, 94 (2d Cir. 1998).

128 Vol. 44 / American Business Law Journal

information, editorializing and personal asides.’’

3

While many blogs retain

their personal feel, blogs have become more interactive, often allowing

readers to post comments to blog entries.

4

By 1999 services began pro-

viding blog tools to mainstream Internet users.

5

The links on blogs are

hypertext links to the World Wide Web which can be to other Web sites, to

specific articles or documents stored on a Web site, to other blogs, or to

specific entries in other blogs. The hypertext linking capability creates a

viral community, in which blogs link to other blogs through ‘‘permalinks,’’

allowing information and opinions to be shared worldwide across the In-

ternet and, hence, the creation of a grassroots ecosystem known as the

‘‘blogosphere.’’

6

The number of blogs is in the tens of millions, with tens of thousands

of new blogs started every day.

7

According to one survey, 32 million

Americans read blogs.

8

As the number and popularity of blogs has grown,

3

Scott Rosenberg, Fearof Links,SALON.COM,May 28, 1999, http://www.salon.com/tech/col/rose/

1999/05/28/weblogs.

4

See, e.g., Buffalo Wings & Vodka (There’s nothing funny about law school), http://wingsand

vodka.blogs.com (last visited Oct. 3, 2006) (a site that allows law students to post comments on

a selection of topics such as exams, current affairs, love, politics, television, and the job search).

5

See Timeline of Early Blogs,BLOCKSTAR.COM, http://www.blockstar.com/blog/blog_timeline.html

(last visited Oct. 3, 2006).

6

See generally The HBR List: Breakthrough Ideas for 2005,HARV.BUS.REV., Feb. 2005, at 17, 39

(discussing how blogs have the potential to substantially impact business practices); David

Kirkpatrick, Why There’s No Escaping the Blog,F

ORTUNE, Jan. 10, 2005, at 44.

7

See Lee Rainie, The State of Blogging,PEW INTERNET &AMERICAN LIFE PROJECT, Jan. 2, 2005,

http://www.pewinternet.org/PPF/r/144/report_display.asp (estimating eight to nine million

blogs by the end of 2004). Technorati, a blog-tracking service, reported in April 2006 that

it was tracking 33.7 million blogs, with nearly 75,000 new blogs every day. Dave Sifry, State of

the Blogosphere, February 2006 Part 1: On Blogosphere Growth,T

ECHNORATI.COM, Feb. 6, 2006,

http://technorati.com/weblog/2006/02/81.html. See also Leslie Walker, New Trends in Online

Traffic,WASH.POST, Apr. 4, 2006, at D1 (noting the growth of Internet traffic at blogging and

social networking sites and the increase in the number of people posting or reading material

at blogger.com to 15.6 million in March 2006,compared to 2.5 million a year earlier). But see

Carl Bialik, Measuring the Impact of Blogs Requires More Than Counting, WSJ.COM,THE WALL ST.J.

ONLINE, May 26, 2005, http://online.wsj.com/public/article/SB111685593903640572.html

(noting that one source estimated the number of active blogsFthose with a posting in the

past 30 daysFwas 3.5 million in May 2005).

8

Rainie, supra note 7. However,the majorityof Internet users still do notknow what a blogis.

Id.See also Bialik, supra note 7 (noting ‘‘there are very few individual blogs that have a

significant number of readers’’); Jason Fry, Blog Epitaphs? Get Me Rewrite!, WSJ.COM,THE

STARTUP JOURNAL, Mar. 2, 2006, http://www.startupjournal.com/ecommerce/ecommerce/

2007 / Business Blogs and Commercial Speech 129