The First Amendment, Commercial Speech, and the Advertising Lawyer

• Publication year: 1985
• Citation: Vol. 9 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 9, No. 2WINTER 1986

The First Amendment, Commercial Speech, and the Advertising Lawyer

Justice Vernon R. Pearson with Michael O'Neill(fn*) (fn**)

I. Introduction

The Supreme Court, in a few cases scattered over several decades, has implied the existence of a public right to a free flow of information(fn1) as one facet of the freedom of speech;(fn2) yet the Court has refrained from specifically basing a decision on any such right. But with the recent line of commercial speech decisions,(fn3) the concept" of a public right to a free flow of information has become firmly established and merits detailed examination. That right, and the rationale of the Court in its commercial speech cases, may have far ranging implications. This Article explores these implications in three areas of immediate interest to the practitioner: general first amendment theory, the scope of the limited first amendment protection extended to commercial speech, and the application of commercial speech guidelines to attorney advertising.

First amendment theory should serve as a signpost by providing direction for a court dealing with a free speech problem. The lack of a cohesive general theory, however, has led to confused and inconsistent first amendment decisions.(fn4) The Supreme Court's commercial speech decisions provide a new viewpoint and an opportunity to reexamine traditional free speech theories. Part II of this Article explores the impact of the commercial speech cases on first amendment theory. Part III explores the development of the split of freedom of speech into freedom of expression and the right to a free flow of information, while part IV follows the development of commercial speech and the extension of first amendment protections to attorney advertising. Part V highlights some of the problems faced by the advertising lawyer, with specific reference to the newly adopted Washington Rules of Professional Conduct. State rules of professional responsibility commonly have lagged behind the Supreme Court's interpretation of the first amendment and have failed to provide any certain guidelines to the attorney or judge faced with an issue in attorney advertising.

II. The Role of Free Speech Values in First Amendment Analysis

The Supreme Court's extension of partial first amendment protection to commercial speech has highlighted the confusion surrounding free speech analysis.(fn5) One leading scholar has noted that "[t]he outstanding fact about the first amendment today is that the Supreme Court has never developed any comprehensive theory of what that constitutional guarantee means and how it should be applied in concrete cases."(fn6) Scrambling to keep up with the Supreme Court's first amendment opinions, commentators are required to revise their analyses,(fn7) or suggest comprehensive philosophical justifications of first amendment protection for future decisions.(fn8)

Four principles or values have been advanced as justifying protections of speech:(fn9) (1) "advancing knowledge and discovering truth";(fn10) (2) facilitating the participation of people in social and political decision-making;(fn11) (3) enhancing "individual self-fulfillment";(fn12) and (4) supplying "a method of achieving a more adaptable and hence a more stable commentary, of maintaining the precarious balance between healthy cleavage and necessary consensus."(fn13)

Each of these values constitutes a particular virtue that is advanced by the mechanism of speech protection, and at one time or another each has been offered as the sole rationale for protecting speech. This section will explore these traditional values in light of the Supreme Court's commercial speech rulings.

A. The Role of Speech in Advancing Knowledge and Discovering Truth

Social theorists have long recognized the essential role of speech in Western cultural and social development. In 1859, John Stuart Mill wrote:

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.(fn14)

Justice Holmes took up this theme and translated it into the marketplace of ideas concept: "The ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . ."(fn15)

The value of a "marketplace of ideas" is in the promotion of truth through the collision and free exchange of opinions.(fn16) Commentators, however, have criticized this justification for protecting speech as unrealistic.(fn17) Moreover, the justification limits the scope of speech protection, for however effective the marketplace of ideas may be in promoting truth, it would not appear to protect such expression as dancing or painting. Commercial speech also would remain unprotected under this conceptualization because it, too, does not deal with ideas.(fn18) Thus, the marketplace of ideas justification is not helpful as a method for delineating first amendment rights in the area of commercial speech.

B. The Role of Speech in Promoting Democratic Decision Making

Commentators have asserted that the first amendment does not protect a "freedom to speak" but rather the freedom of those activities of thought and communication by which we "govern."(fn19) The free speech provision thus is concerned not with a private right but with a public power: the power of the people to be governed as they wish.

Certainly people exercise their governing power by voting. "But in the deeper meaning of the Constitution, voting is merely the external expression of a wide and diverse number of activities by means of which citizens attempt to meet the responsibilities of making judgments, which that freedom to govern lays upon them."(fn20)

One view of the first amendment as promoting the decisionmaking process would justify protection of cultural and artistic speech on the grounds that such speech leads the way "toward sensitive and informed appreciation and response to the values out of which the riches of the general welfare are created."(fn21) Another view of the first amendment would protect only speech that is explicitly political. The underlying rationale behind this approach is that expressly political speech should enjoy absolute protection because if political speech is protected along with other types of speech less important to society, an overall erosion of speech protections could occur as courts determine the extent to which nonpolitical forms of speech should be protected. Differentiation of political speech thus is essential to preserving its absolute protection.(fn22)

The logic of the political speech model is persuasive, and the model has received broad support from commentators(fn23) and courts.(fn24) One commentator has pointed out, however, that while under this theory the ultimate value of speech lies in its furthering of the democratic process, the democratic process itself may be seen as a means to furthering other social and individual ends.(fn25) In either event, there is no place in this theory for commercial speech, thus limiting the usefulness of this theory as an analytical tool.(fn26)

C. Speech as a Means to Self-Fulfillment

Speech can be seen as a natural right fundamental to human existence: "What, finally, of speech as an expression of self? As a cry of impulse no less than that as a dispassionate contribution to intellectual dialogue?"(fn27)

One view of free speech as an end in itself has been referred to as the "liberty model."(fn28) The liberty model founds protection of speech upon a perception of the self. "The values supported or functions performed by protected speech result from that speech being a manifestation of individual freedom and choice . . . ."(fn29) Accordingly, to be protected, speech must "represent an attempt to create or affect the world in a way which can be expected to represent [someone's] private or personal wishes."(fn30) Because the first amendment would protect only speech that is uttered in fulfillment of an individual need, merely profit-motivated or commercial speech would not enjoy the protection it now receives.(fn31)

The liberty model has been criticized as artificially narrow and restrictive of information necessary to the development of individual fulfillment,(fn32) but the model does enunciate a real value that has been influential in some first amendment cases.(fn33) It does not, however, incorporate and synthesize the most recent developments in speech jurisprudence. Under the liberty model, not only would commercial speech be unprotected, but speech uttered by a corporation and other ordinarily protected speech that is uttered for a commercial reason also would be unprotected.(fn34) Yet the Supreme Court has, in each instance, found such speech to be protected.(fn35)

D. Speech as a "Safety Value"

The "safety valve" model was suggested by the manner in which speech protections channel expression in ways that strengthen and support a social...