Commercial Speech and the First AmendmentrnCigarette Companies and the Playboy Channel Have Rights, Too —Or Do They?rnby Stephen B. PresserrnFor sheer incoherence, incomprehensibiHty, and outrageousness,rnnothing beats the United States SupremernCourt’s First Amendment jurisprudence. The First Amendmentrnis a fairly simple piece of constitutional law: It forbids thernfederal legislature from restricting freedom of speech, freedomrnof the press, freedom of religion, or from establishing a nahonalrnreligious sect. Unfortunately, in the 20th centur)’, the SupremernCourt has been influenced by the “anything goes” jurisprudencernof Legal Realism, embarking on an extraordinary programrnof transforming the Constitution. In the process, the FirstrnAmendment’s meaning has become hopelessly obscured.rnThe key mistake made by the Court was its decision that thernfreedoms guaranteed by the First Amendment were so fundamentalrnthat the prohibitions should be extended, without expressrnconstitutional authorit}’, to the acts of state and local governments.rnWlien the 14th Amendment provided that no staternshould deprive any citizen of life, liberty, or propert}’ withoutrndue process, the Court claimed that somehow this meant thatrndiere were certain freedoms—such as freedom of speech, press,rnand religion—that could never be deprived through due process.rnThese freedoms were essential, in the Court’s words, torn”ordered libert}-.” Yet no one knows which freedoms are essenhalrnto ordered libert}-, and what parts of the Bill of Rights nowrncircumscribe state and local government.rnAnv serious student of constitutional history, however, understandsrnthat the Bill of Rights, when adopted in 1791, was de-rnStephen B. Presser is Raoul Berger Professor ofl^gal History atrnNorthwestern University School of Law, Professor of BusinessrnPaw at Northwesteni’s Kellogg Graduate School ofrnManagement, and Legal Affairs Editor for Chronicles.rnsigned to shield state and local governments from intrusion byrnthe federal government. Thus, to read the 14th Amendment asrnnullifying the original purpose of the Bill of Rights—indeed, tornread the I4th Amendment as necessitating the use of the Bill ofrnRights as a club to beat back state and local governments—is arnconstitutional travesfy. Unfortunately, the last time a high publicrnofficial (President Reagan’s Attorney General Edwin Meese,rna former law professor) made this argument in public, he was sornexcoriated by the legal establishment that practically no one inrnthe bench, bar, or academy has dared utter it again.rnBecause there are no firm guides for deciding how to interpretrna misconstrued First Amendment, the Court has fashionedrnelaborate rules, balancing tests, and layered tiers of scrutiny,rnperhaps in an unconscious effort to disguise the lack of constitutionalrnbasis for what the Court has done. Take “commercialrnspeech.” Since commercial speech (advertisements, in particular)rnis a subset of “speech,” you might think that any FirstrnAmendment prohibitions on regulation ought to extend to it asrnwell. Curiously, this commonsense understanding is now therncutting-edge of commercial-speech scholarship: Professorsrnsuch as my colleague Martin Redish claim that commercialrnspeech is no different from the exercise of any other FirstrnAmendment freedom and, therefore, ought to be entitled to thernsame protection. Redish makes this case specifically on behalfrnof tobacco companies, which he has represented in their strugglesrnto ward off state and federal restrictions on advertising. Irnhave consulted with at least one tobacco company myself; thernlegal decks are as stacked against “Big Tobacco” (in the phrasernemployed by Big Media) as they have ever been against any interestrngroup. The vicious hostility to the tobacco companies exhibitedrnby politicians, media, and intelligentsia is almostrnOCTOBER 2000/1 9rnrnrn