A new architecture of commercial speech law.

• Author: Fischette, Charles

INTRODUCTION I. THE LINGERING PROBLEM OF COMMERCIAL SPEECH--THE MEANING OF CENTRAL HUDSON II. THE CONSTITUTIONAL CASE FOR PROTECTING COMMERCIAL SPEECH A. The Value of Commercial Speech 1. The Democratic Rationale 2. The Individual Rationale B. The Case Against Commercial Speech Regulation C. Summary III. PROTECTING COMMERCIAL SPEECH A. The Problem--Legitimate Regulation and Unstructured Balancing B. R.A.V. v. City of St. Paul--A Proposal for Commercial Speech Regulation CONCLUSION INTRODUCTION

The commercial speech component of First Amendment doctrine is frequently considered an area in need of reform, and possibly even of demolition. The reasons advanced for protecting commercial speech often seem obscure. The Supreme Court, in a series of confusing and sometimes inconsistent opinions, (1) has not been very helpful in explaining such justifications. This Article offers a systematic defense of why commercial speech is deserving of First Amendment protection and how, with minimal doctrinal change, commercial speech law can be simplified and made coherent. Part I outlines the difficulties the Court has had in this area and explains why the question of justification for constitutional protection remains salient more than thirty years after constitutional protection for commercial speech first began.

Part II defends the general framework of commercial speech law; namely, that commercial speech is entitled to substantial but reduced protection under the First Amendment as a separate doctrinal category. This Article offers two independent but mutually reinforcing justifications for this framework. First, this Article argues that commercial speech furthers a variety of listener interests with which the First Amendment should be concerned. Second, even if one rejects the First Amendment principles that counsel in favor of protecting commercial speech as such, some justifications for regulation of any speech--most importantly, that speech can be regulated because listeners might come to agree with it--must be forbidden absent an especially compelling reason. (2) Such regulations would directly undermine the neutrality that the government must exercise toward the dissemination and discussion of ideas, and substitute the government's own judgment for that of individual citizens. (3)

Part III suggests that the Court has accidentally stumbled onto the correct treatment of commercial speech in another area. R.A.V. v. City of St. Paul (4) provides the appropriate schemata to protect commercial speech, subject to the state's legitimate interest in regulating speech attendant to economic transactions, and to preclude content-based or viewpoint-based regulations of disfavored speech. It achieves the former by requiring speech regulation to be based on the reason for the categorical exception--that is, the reason that commercial speech may be constitutionally treated differently (subject to other limited exceptions). (5) This assures that commercial speech regulations may exist only where the government can point to an interest related to the reason commercial speech is subject to less protection than core non-commercial speech. This R.A.V.-inspired structure serves the latter by eliminating any possibility of discrimination in the same way--thus, the only acceptable justifications for restrictions on commercial speech are ones related to the particular class of harms that commercial speech poses.

1. THE LINGERING PROBLEM OF COMMERCIAL SPEECH: THE MEANING OF CENTRAL HUDSON

   History reveals deep divisions over the appropriate treatment of commercial speech, especially regarding application of the leading test developed in Central Hudson (6) and whether it provides appropriate guidance for courts. This Part provides a brief overview of the major commercial speech cases decided by the Supreme Court. Although the Court initially offered an array of justifications for First Amendment protection of commercial speech, the Court's recent discussion of the topic has been confusing and internally contradictory. The Court's inability to articulate a coherent or consistent rationale for the protection of commercial speech is the principal reason that commercial speech law is an unsettled area of First Amendment doctrine.

   In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., (7) the Court's first foray into commercial speech protection, the Court voided a statute prohibiting pharmacists from advertising prescription drug prices. (8) To the majority, it was not dispositive that the interested parties had only an economic motivation, nor that the speech was perhaps not "newsworthy" in a general sense. (9) Indeed, the Court noted that the interests of the parties "in the free flow of commercial information ... may be as keen, if not keener by far, than [their] interest in the day's most urgent political debate." (10)

   The Court articulated a series of justifications for First Amendment protection of the disputed speech. The information pharmacists would provide--the price of drugs--has an important economic impact, for the suppression of that information hurts most "the poor, the sick, and particularly the aged," who are least able both to pay higher prices and to search for lower ones. (11) Furthermore, society generally has an interest in the free flow of commercial information; because the practices of businesses and the products they make available are often issues of substantial public import, a "general public interest" may be served by commercial speech. (12) Finally, as long as economic decisions are made privately in a capitalist system, it is in the public interest that those decisions be made on the basis of maximum available information, both so that they be made efficiently and so that people may be aware of the advantages and disadvantages of the present system in the event of proposed changes. (13)

   The Court then addressed the proffered justifications for the ban. It summarily rejected Virginia's claim that the ban would lead to reduced professional standards stemming from price competition. Because Virginia directly regulated the practice of pharmacies, pharmacists would be required to operate at a high level even in the absence of restrictions on advertising. (14) The only interest furthered by the advertising ban was to keep people ignorant of the real prices pharmacists charge. To the extent that the statute affected professional standards at all, it did so "only through the reactions it is assumed people will have to the free flow of drug price information.... [I]f the pharmacist who wishes to provide low cost, and assertedly low quality, services is permitted to advertise, he will be taken up on his offer by too many unwitting customers." (15) The Court continued:

   There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.... It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us. (16) Commercial speech may, of course, be regulated--by reasonable time, place, and manner restrictions; to the extent that it is false or misleading; or when it proposes an illegal transaction. (17) Such partial protection is justified, in the Court's view, primarily because commercial speech is typically subject to verification by its speaker, and is generally less susceptible to chilling effects because of the economic motivations supporting it. Rules imposing liability for falsehood are therefore unlikely to silence the speaker inadvertently. (18) Nonetheless, a state cannot "suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients." (19)

   Virginia Pharmacy, then, appeared to offer three grounds for First Amendment protection of commercial speech: (1) the interest of an individual consumer "in the free flow of consumer information"; (2) a societal interest in the information provided by commercial speech that may, and often will touch on a matter of public political concern; and (3) another societal interest in efficient individual decision making within a capitalist system that relies upon decentralized rational economic choice. (20) In addition, implicit in Virginia Pharmacy is an argument based on First Amendment principles more generally rather than the value of commercial speech itself: that the First Amendment limits the means by which government can achieve its legitimate goals. More specifically, the Court seemed to believe that the First Amendment clearly forbids achieving a regulatory goal by suppressing information relevant to citizens' choices. (21)

   Parsing and evaluating the Court's rationales is no easy task. The first and third interests appear to be largely the same. Although treated separately in the opinion, the individual consumer interest is largely an interest in securing commodities at the most efficient prices, (22) and the third interest merely applies that principle to society as a whole. Understood this way, it is difficult to see why these interests, legitimate as they may be, are First Amendment concerns. (23) The government maintains wide latitude to fashion economic relationships; to review those decisions under the auspices of the First Amendment seems strange. Even if this rationale is contingent on the American economy remaining predominantly capitalist, it still appears to require the government to structure its speech-related laws, especially regulation of advertising, in such a way as to maximize economic efficiency. (24) Although the First Amendment...