Commercial Speech

• Pages: 153-172
• Author: Daniel A. Farber

153

Chapter 8

COMMERCIAL SPEECH

Until about fifty years ago, government had a free hand in

regulating advertising. At about the same time as obscenity and libel

were defined in Chaplinsky v. New Hampsh ire as categories of

unprotected speech, the Cou rt announced in another case that

commercial advertising also fell completely outside the scope of the

First Amendment. In the mid-1970s, howe ver, commercial speech

was brought firmly under First Amendment prote ction. But even

today, commercial speech is not covered by the same First

Amendment rules as other sp eech. It is still considere d a sort of

“second class” speech and re ceives less protection than political or

artistic expression.

In this chapter, we will trace and evaluate this ev olution. We

will then consider the Court’s treatment of two specific types of

commercial speech: advertising by lawyers and pro motion of high -

risk products such as cigarettes and alcohol. These relate to the

broader question of how much the government can regulate

professional speech.

Because this chapter is the end of Part II, we will end with some

concluding thoughts about the law governing disfavored categories of

speech. The Court has now had over four decades to elaborate on this

legal framework. How satisfactory are the results?

I. The Road to Protected Status

Although commercial speech w as not explicitly given

constitutional protection until 1976, this development was the result

of a long evolutionary process. In this section, we will trace this

process and then evaluate the arguments for and against pro tecting

commercial speech.

A. Creation a nd Erosion of Unprotected Status

The Supreme Court first attempted to resolve the First

Amendment status of commercial speech in Valentine v.

Chrestensen.

1

A few cases involving commercial advertisers had come

up earlier, but either the First Amendment had not been invoked, or

the Court had ignored the question of whether advertising was

entitled to constitutional protection. In Valentine, the plaintiff had

distributed a handbill advertising a submarine exhibit in violation of

a New York City ordinance forbidding commercial leafleting in the

1

316 U.S. 52 (1942).

154

THE CATEGORICAL APPROACH

Pt. II

streets. He sued to enjo in enforcement of the ordinance but lost

because the Court found that the First Amendment allowed

regulation of the co mmercial use of the streets. Relying on this case

eight years later, the Court held in Breard v. Alexandria

2

that door-

to-door salesmen—“solicito rs for gadget s or brus hes”—could not

claim the protection of the First Amendment. Chrestensen and

Breard were subsequently interpreted to deny First Amendment

protection to all commercial speech. The Chrestensen doctrine w as

criticized by commentators, and the Co urt never gave a justification

for its denial of First Amendment protection to commercial speech.

Nor did it define “commercial speech,” a term which turned out to be

far from self-explanatory. Nevertheless, the Court virtually ignored

the commercial speech problem for some twenty years.

The Court returned to commercial speech in Pittsburgh Press

Co. v. Pittsburg h Comm’n on Human Relations,

3

in w hich a

newspaper had been enjoined from placing job ads in gender-

designated columns. The Court seemed unwilling to rely exclusively

on the Chrestensen doctrine to uphold the injunction. Instead, the

Court reasoned that classifying want ads by ge nder was comparable

to running “a want ad proposing a sale of narcotics or soliciting

prostitutes.” The Court’s analogy was not especially helpful; the

narcotics ad is prohibited as the prelude to other illegal conduct by

the advertiser, whereas the basis fo r prohibiting gender designation

in want ads is that the ads themselves cause harm by discouraging

certain applicants, without any further action by the advertiser.

The next case in the series also evidenced the Court’s uneasiness

with the Chrestensen doctrine. In Bigelow v. Virginia,

4

a Virginia

newspaper had been convicted of publishing an ad for a New York

abortion referral service. The referral service was le gal in New York

but illegal in Virginia. (This was shortly before the Court’s decision

holding abortion to be a fundamental right.) The Court began with

the premise that Virginia could not prevent its residents from

traveling to New York to obtain the referral service. Given this

premise, which the Court apparently derived from the “right to

travel,” Bigelow was easy to resolve. A state surely has no legitimate

interest in keeping people ignorant of their constitutional rights or

in preventing them from exercising those rights intelligently. Quite

apart from the First Amendment itself, the existence of a

constitutional right (here , the right to travel) seems to imply the

additional right to exercise that right knowledgeably. Any special

power the government may have to regulate commercial speech

derives from its power to regulate the underlying commercial

2

341 U.S. 622 (1951).

3

413 U.S. 376 (1973).

4

421 U.S. 809 (1975).