The commercial/noncommercial boundary

The Shifting
Boundaries Between Commercial & Non-Commercial Speech
Moderator:  Vince Blasi, Corliss Lamont Professor of
Civil Liberties, Columbia Law School
Tamara Piety,
Phyllis Hurley Frey Professor of Law, University of Tulsa College of Law: Book,
Brandishing the First Amendment. 
Different origin stories, one presented by Kozinski and Banner (minority
position)—that origin story is that commercial speech was always protected, then
unaccountably removed in 1942, the Valentine
case involving a flyer advertising a submarine tour.  The more common understanding of where the doctrine
came from was 1976 decision in Va.
, price advertising for pharmaceuticals.  Wasn’t really clear from Va. Pharmacy or Central
etc. what commercial speech was—a bit of “I know it when I see it.” Belotti, not a commercial speech case,
asked whether corporations had speech rights, but Ct instead asked whether this
was the type of speech that’s traditionally been protected: answer there was
yes.  That characterization of
corporation as valuable speaker and of listener’s interests in receiving the
speech regardless of source came back to commercial speech.
Va. Pharmacy did something interesting w/truth, fleshed
out by Central Hudson.  Lawful, truthful, nonmisleading—then it got
relatively strong protection, requiring substantial gov’t interest advanced by
regulation, w/o unreasonable interference w/1A rights. Truth, then, is what
gives commercial speech coverage.  But
truth is precisely what we worry about the gov’t testing in the political
However, SCt is interpreting
this test as closer to strict scrutiny than intermediate scrutiny over time.
Compared to rational basis, the obverse of strict scrutiny, for economic
regulation.  We’ve also seen articulation
of content neutrality and idea of speaker discrimination in commercial speech
context in ways that give rise to Qs about whether or not this is a distinctive
area.  If so, then the regulatory state
like the FDA and FTC are broadly under threat. 
One example: Daubert
distinguishes between types of testimony that are allowed; is that gov’t
discrimination based on the content of speech? 
Securities regulation, campaign finance, professional speech of doctors,
occupational licensing.
Martin Redish, Louis
and Harriet Ancel Professor of Law and Public Policy, Northwestern University
School of Law: Underlying theory of commercial speech protection. Describing
his own scholarly saga.   He invented
constitutional protection for commercial speech.  His first article was the first article to
suggest that commercial speech deserved significant constitutional protection;
not well received at Harvard where he wrote it! 
Began using as a foil Meiklejohn, whose 1A theory protected only
political speech. Premise: important actor under the 1A is not the speaker but
the listener, exercising self-gov’t, who needs info/opinions to make
self-governing choices. Redish said: let me stipulate to that for purposes of
argument; commercial speech then facilitates self-government, not in collective
sense where individual just has one vote, but in private self-gov’t sense where
individual has 100% control of his/her life—what car to buy, what house to buy,
what TV to buy—all central to self-realization. 
[Of course, the individual doesn’t have 100% control over any of these;
she is hostage to what’s on the market, unless she has the power of eminent
SCt then defined commercial
speech as proposing a commercial transaction—Ralph Nader gets full 1A
protection for criticizing the Corvair, but Chevy doesn’t get protection when
responding (pre-Va. Pharmacy).  One side of a debate gets protection, the
other doesn’t.  Consumer Reports gets full 1A protection for saying Hoover is the
best vacuum, but when Hoover quotes that it doesn’t b/c they’re proposing a
commercial transaction—exact same speech to exact same people, burdened
separately b/c of speaker’s motivation. In no other area of law does speaker’s
self-interest reduce 1A protection.  Anti-tax
groups argue against taxes = self-interest. Unions pushing increased tariffs =
personal self-interest. Civil rights protestors = self-interest. You may like
that self-interest and not commercial self-interest, but that’s not an
appropriate basis of distinction. To reduce protection is to insert
anti-capitalist undertone to the 1A.  [Or
it’s about regulating commercial transactions.]
Rehnquist didn’t
like any free speech protection, so I disqualify him from consideration.  [Blasi asks: isn’t that disqualifying him
based on motivation.]  The number of
scholars who want to give no protection to commercial speech while protecting
others is Twilight Zone viewpoint regulation—drawing an exception for no reason
other than that you don’t like the promotion of that thing.  Steve Shiffrin’s response: kids today are thinking
about nothing but materialism; these aren’t the values we should instill.  Proves Redish’s point. It’s not b/c
commercial speech isn’t as valuable, it’s b/c they don’t like the message being
sent. Serious pathology. Irony: SCt in Sorrell
recognized that: otherwise unjustified distinctions in regulating speakers is
invidious viewpoint regulation, but hasn’t realized that, by that standard,
commercial speech doctrine violates the 1A.
Floyd Abrams,
Partner, Cahill Gordon & Reindel LLP: Two big cases: until 2011, whatever
else the SCt was saying was that commercial speech was different, and to be
treated differently.  Moved in Sorrell to unified treatment.  Heightened scrutiny, referring to consumer’s likely
greater interest in commercial information than in politics.  Dissent said: this means everything commercial
gets heightened scrutiny, which we’ve never done before.  FDA’s regulation of promotion of off-label
uses, for example.
Unclear how far the
Court had gone, and remains unclear; Court hasn’t taken a commercial speech
case since then, though it has had Reed
v. City of Gilbert
. Majority: says that any content discrimination triggers
strict scrutiny, citing among other things Sorrell,
which would indicate end of commercial speech doctrine; Breyer’s concurrence
objected strongly to that.  Question
remaining: did they mean it?  SEC, FEC,
it’s all content regulation—speech about airplanes!  More likely: strict scrutiny would be watered
down to sustain the regulatory state.  In
the securities area, he thinks that when stockholder votes on management, b/c
of Reed, it’s much more likely than
ever before that normal 1A rules will be applied, but will they be applied
literally?  Last week, 3d Cir. used the
phrase “drastically rewritten” 1A jurisprudence, reversing itself and holding a
statute unconstitutional w/r/t porn regulations. 7th Cir. and 1st
also reversed themselves in cases about bars on panhandling.  W/o proof that there’d been panhandling in
garages, couldn’t ban panhandling in garages.
Blasi: Scalia was at
pains to call himself a textualist. 
Should we think about commercial speech any differently b/c it says “Congress
shall make no law abridging the freedom
of speech
,” rather than “speech”?
Piety: that’s also
an argument for a more robust press clause, which has been subsumed into
speech. Not sure how this cuts b/c she thinks we don’t want to destabilize an
entire edifice of criminal law, libel law. Can’t take it so literally as to
mean “any speech.”  But that then takes
us back to Scalia’s resort to original meaning. 
What was the Framers’ idea of “freedom of speech”?
Abrams: Scalia said “the”
was the key word: takes us back to English law before the adoption of the Bill
of Rights, contrary to what Justice Black and others said, which was that the
whole purpose of the Bill of Rights was to escape from/move ahead of the old
Redish: the most
textualism can do for you is fight back against the idea that there was
absolute protection for speech, which is infeasible.  “The freedom” doesn’t say you can never
regulate speech, if you have a compelling interest.  Beyond that, textualism doesn’t tell you very
much, and nothing about commercial speech. 
If it did, it would be that there’s no rational basis for distinguishing
b/t commercial and noncommercial speech.
Piety: one canon of
construction: you should not interpret a statute so that some part is
surplusage. There’s also a commerce clause. 
When we talk about freedom of speech, we seem to have moved into a back
and forth b/t theoretical, descriptive assessment and a legal assessment that
departs from full descriptiveness. It’s true that, in gay marriage for example,
there’s an expressive aspect to running a business.  But that may not be a very good principle to
apply to the regulation of commerce if we are to regulate commerce at all. If
all businesses are expressive then it seems like what you have is a 1A that
swallows the Commerce Clause. And New Deal aside, we are talking about putting
a constitutional cloud on an enormous number of statutes; that seems
ill-advised. Reed has created
doctrinal uncertainty.
Redish: Straw man;
you can use O’Brien to separate
expressive from nonexpressive. Your belief that African-Americans shouldn’t eat
in your restaurant doesn’t mean that you can keep African-Americans out.
Operating the business itself is not the same as speech, which is why the Lochner analogy breaks down.  Vitally important to separate them out—regulating
activity b/c of its communicative value and regulating b/c of its
noncommunicative harms.
Abrams: we don’t
advance the ball by reading “speech” in a way so broad as to include every use
of words. Perjury is speech. Spying is speech. [Or at least data
collection.]  There are words that all
agree are categorically excepted out of “the freedom of speech” because we’ve
always done it and the Framers must have meant that. We do need a bit of theory
Blasi: Redish has
developed a very sophisticated and creative argument that many regulations of
commercial advertising have an element of viewpoint discrimination.  What’s motivating the regulation is an
ideological position.  Sorrell can be narrowly read to be about
viewpoint discrimination: Vermont was taking a position on generic drugs and
the like.  What Reed does is to conflate viewpoint regulation w/content-sensitive
regulation. There was no viewpoint discrimination in Reed. 
I’ll go further:
there’s not a judge I respect more than Kagan or a lawyer more than Abrams;
both agree that Reed’s law didn’t pass the laugh test, but he disagrees. Those
regulations were about duration and size of signs. The rationale for the
distinctions was that signs directing people to a location don’t have to be
big, and the smaller the better for clutter/aesthetics, b/c the potential
audience is looking for them.  Political
signs don’t need to stay up after election. For nonpolitical ideological
self-expression, that’s the strongest case for thinking the sign needs to be
both big and lasting. So that reflected sensible distinctions about which
speech needs which freedoms.
Key: Reed treats content-sensitive regulation
as viewpoint-discrimination, which is why it has such big potential
Piety: selling
stuff: is viewpoint-neutral. Not all of us would agree that Sorrell is about viewpoint.  As for O’Brien:
where’s the speech in selling data?  Not
an apparent connection to speech; the connection is to later use in marketing.
Marketing as such is not a viewpoint, which goes back to her point about the Commerce
Abrams: everyone has
an economic interest in what they do or say on certain occasions.  Content-sensitive is a very soft, euphemistic
way of saying “content distinction” or content-based.  Often viewpoint rooted even if hard to prove,
and we don’t want to get into legislature’s motive.
Redish: if a city
passes an ordinance saying that cars w/Trump bumper stickers can’t park in the
city parking lot, parking spaces aren’t speech but that’s discrimination
against someone b/c of her speech. Data mining isn’t speech, but there’s
discrimination against speakers b/c of their views.  Viewpoint discrimination is not normally from
the regulator, but from the court.  If
the court defines commercial speech not by the substance of what’s being said but
solely the commercial/noncommercial motivation of the speaker, that’s hostility
to capitalist interest of trying to make money. 
Speech about commercial products = would be a content-based regulation.  Exact same speech to same audience but
differently regulated = covert viewpoint regulation.
Piety: note that
businesses are supposedly always seeking to increase their profits, even with
speech that doesn’t immediately seem to benefit it. But we need to think about
what the rules of the commercial game are—antifraud laws are an important
boundary; without this line b/t commercial and noncommercial, then you get Rehnquist’s
concern: corporations may become more involved in politics, and indeed that
happened.  Speech/act distinction is
Q: City of Santa
Monica decided to accept only ads that proposed commercial transactions on its
buses.  Reason: precedent where
Arab-Israeli conflict got played out on side of buses.  Everything said in 2d panel was turned on its
head; I had to demonstrate that AIDSwalk was engaged in a commercial
transaction in order to advertiser.  Led
me to Kozinski’s viewpoint: overtheoreticalization leads us down bad roads.
Abrams: one of the
few areas where American law provides less protection than available elsewhere.
Canada ruled that buses could and were entitled to have political ads on them;
legislature couldn’t prevent it.
Q: Alito’s
concurrence in Reed wrote as if he
were speaking for most of the bench when it said the Court wouldn’t be wiping
out a whole series of regulations, including distinction b/t on-site signage
and on-site signage—isn’t that content-based? 
If that’s true, what happens without Scalia?
Abrams: Alito was
trying to minimize the impact of the majority. True that the example Alito uses
is inconsistent w/the holding.
Blasi: Lower courts
since Reed have often found no
content discrimination. If you’re going to make content discrimination so
crucial, then there will be a struggle about what really counts as such. So
far, the pattern of interpretation has had the greatest impact w/panhandling regulation.
Q: where will we/should
we get limiting principles from about what the 1A will apply to?  Redish is saying that some things like
employment discrimination are outside the scope of the 1A, but that’s not
Abrams: Although I
mock some of the Reed outrage, I also
think it can’t mean what it seems to say. Two vulnerable points: What counts as
content based?  What counts as strict
scrutiny?  Last Term, there was a strict
scrutiny case for judicial campaigning, where it was clear to Abrams that the
dissenters had the better of the argument that, based on prior opinions, strict
scrutiny hadn’t been satisfied.  Under
the challenged rule: As long as the judge doesn’t make the solicitation
herself, everything was ok—he’s skeptical of that. Court may be moving in
direction of making strict scrutiny less fatal. 
Not a complete upheaval of the regulatory state, but a number of
sensitive areas—campaigns for shareholder voting sound like election campaigns.  For that to be subjected to the rigor of SEC
regulation as it is now is dubious post-Reed,
but he doesn’t think that sec. 11 of the 1933 Act will fall (false statements,
even negligently made or good faith, create strict liability).
Blasi: Breyer
emphasizes, both in Sorrell and in Reed, the quantitative dimension. He
talks about regulatory state, but what about impact on 1A itself? Is the 1A a
commitment that can be cheapened by overuse, disconnected from historic
struggles and just commonly invoked? I see it every September; only in last 3-4
years have there been a flood of second-year students w/potential 1A notes, b/c
in their law firms all of a sudden they’re thinking more about the 1A than ever
before.  [I believe Blasi
may have written something about this
Redish: I don’t
believe there’s a need to draw on historic struggles. There’s nothing special
about history.  Framers agreed that
blasphemy wasn’t protected; flagburning was never even thought about.  [Ah, levels of generality.] The constitution
evolves, as long as you’re not exceeding the outer limits of the text and have
a coherent account.
Piety: Evidence,
civil forfeiture—in both these areas, SCt precedent conflicts.  Her sense is that notwithstanding the
invitation in Reed, the Court will
continue trying to duck it. Worst case scenario: watering down strict scrutiny
in areas we really want strict scrutiny. 
Abrams: One of the
objections to protecting commercial speech was that it would cheapen the
1A.  Now one writes briefs in political
speech cases, hoping to get as much protection.
Redish: Blasi has
argued the pathological perspective before. Question-begging: if commercial
speech is really fostering the same values, then it should get the same
protection. So we’re back to defining value. Also, there’s a danger of reverse
dilution, given pathology of regulation of truthful speech based on
paternalistic notion that people can’t decide for themselves; gov’t has to
intervene to make choices for them. If we accept that basic rationale, it should
apply to politics. If people are sheep, they are sheep. [This actually doesn’t
track with what we know about consumers as consumers—they’re vulnerable in
certain contexts, and not in others; it’s perfectly possible to be a sheep as
to topic X and a scholar as to topic Y. 
And as a matter of prophylactic constitutional law, deciding that the
gov’t is really bad in ruling in its own direct favor seems quite reasonable.]
Piety: we often want
gov’t to make our lives easier. Trial and error isn’t great for what’s
poisonous.  The paternalism argument is
often when the consumer is saying “I don’t want to receive robocalls” and goes
to the gov’t and the gov’t creates the Do Not Call list.  Response: if you knew what was good for you,
you’d receive these messages.  Same
argument was made in Sorrell. Yet we
know that the cognitive load from a deluge of messages is a big deal.  Rational response may be to ask the gov’t to
help you implement your own choice.  It
may be that we distrust the gov’t most in the political sphere. 
Redish: If you
understand public choice, that’s wrong.

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