South Carolina Lawyer
Vol. 13, No. 4, Pg. 26.
The decline of paternalism and the Commercial Speech Doctrine
26The decline of paternalism and the Commercial Speech DoctrineBy Jay BenderOne of the paradoxes of our representative democracy is a societal deference to a leadership class and an acceptance of a paternalistic model of government.
Looking at provisions in both the state and federal constitutions that affirm the retention of political power by the people, it seems incongruous that citizens would be tolerant of the imposition of paternalistic limitations by government. Under the South Carolina Constitution all political power is reserved to the people, Art. I, § 1, and the Ninth and Tenth Amendments to the U.S. Constitution acknowledge the power of the people. These provisions notwithstanding, those in positions of power seem inclined to decide that they know what is best for their subjects.
One area where the leadership has traditionally sought to impose paternalistic judgment is restrictions on speech - particularly commercial speech. The case that placed commercial speech beyond the protection of the First and Fourteenth Amendments and subject to the paternalistic notions of the governing class was a New York case that was part P. T. Barnum and part constitutional sleight of hand.
28A man named Chrestensen brought his World War I submarine to New York City, moored it at a pier on the East River and solicited paying customers by distributing a handbill that advertised the boat and stated the admission fee. Advised by authorities that the handbill would violate a city code unless it was solely devoted to "information or protest," Chrestensen revised his handbill to delete reference to the admission fee and on one side of his bill protested the city's refusal of wharfage at a city pier.
Chrestensen's distribution of the modified handbill was restrained by the police. In response, Chrestensen sought and received an injunction against police enforcement of the ordinance. A divided Second Circuit affirmed. The Supreme Court reversed and in doing so categorically exempted commercial speech from First Amendment protection, stating in Valentine v. Chrestensen, 316 U.S. 52 at 54 (1942):
We are ... clear that the Constitution imposes no ... restraint on government as respects purely commercial advertising.
No authority was cited for this proposition, and the result was to add commercial speech to obscenity, defamation and "fighting words" on the list of categorical exemptions from constitutional protection.
Prohibitions against commercial speech have been criticized as highly paternalistic and favoring ignorance over information. Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). The government knows best mentality inherent in commercial speech prohibition was readily evident in § 56-1075 of the South Carolina Code of 1962 which made it...