For sheer incoherence, incomprehensibility, and outrageousness, nothing beats the United States Supreme Court’s First Amendment jurisprudence. The First Amendment is a fairly simple piece of constitutional law: It forbids the federal legislature from restricting freedom of speech, freedom of the press, freedom of religion, or from establishing a national religious sect. Unfortunately, in the 20th century, the Supreme Court has been influenced by the “anything goes” jurisprudence of Legal Realism, embarking on an extraordinary program of transforming the Constitution. In the process, the First Amendment’s meaning has become hopelessly obscured.
The key mistake made by the Court was its decision that the freedoms guaranteed by the First Amendment were so fundamental that the prohibitions should be extended, without express constitutional authority, to the acts of state and local governments. When the 14th Amendment provided that no state should deprive any citizen of life, liberty, or property without due process, the Court claimed that somehow this meant that there were certain freedoms—such as freedom of speech, press, and religion—that could never be deprived through due process. These freedoms were essential, in the Court’s words, to “ordered liberty.” Yet no one knows which freedoms are essential to ordered liberty, and what parts of the Bill of Rights now circumscribe state and local government.
Any serious student of constitutional history, however, understands that the Bill of Rights, when adopted in 1791, was designed to shield state and local governments from intrusion by the federal government. Thus, to read the 14th Amendment as nullifying the original purpose of the Bill of Rights—indeed, to read the 14th Amendment as necessitating the use of the Bill of Rights as a club to beat back state and local governments—is a constitutional travesty. Unfortunately, the last time a high public official (President Reagan’s Attorney General Edwin Meese, a former law professor) made this argument in public, he was so excoriated by the legal establishment that practically no one in the bench, bar, or academy has dared utter it again.
Because there are no firm guides for deciding how to interpret a misconstrued First Amendment, the Court has fashioned elaborate rules, balancing tests, and layered tiers of scrutiny, perhaps in an unconscious effort to disguise the lack of constitutional basis for what the Court has done. Take “commercial speech.” Since commercial speech (advertisements, in particular) is a subset of “speech,” you might think that any First Amendment prohibitions on regulation ought to extend to it as well. Curiously, this commonsense understanding is now the cutting-edge of commercial-speech scholarship: Professors such as my colleague Martin Redish claim that commercial speech is no different from the exercise of any other First Amendment freedom and, therefore, ought to be entitled to the same protection. Redish makes this case specifically on behalf of tobacco companies, which he has represented in their struggles to ward off state and federal restrictions on advertising. I have consulted with at least one tobacco company myself; the legal decks are as stacked against “Big Tobacco” (in the phrase employed by Big Media) as they have ever been against any interest group. The vicious hostility to the tobacco companies exhibited by politicians, media, and intelligentsia is almost enough to make me take up smoking in protest. Yet the position that commercial speech is no different from other forms of speech remains very much a minority view—although it may be on the ascendant.
Until very recently, the Supreme Court took the position that commercial speech was not speech at all. The theory seemed to be that “commercial speakers” were just interested in making money, not in exploring the political and moral concepts, or perhaps literary and philosophical ideas, that the drafters of the First Amendment were interested in promoting. Commercial speech could fend for itself. If the commercial speaker had an economic stake in the matter, he would manage to get his message across. Moreover, if the government could prohibit the sale or manufacture of particular products (and nothing in the Bill of Rights or the Constitution forbids such prohibitions), then surely speech that promoted the sale of products could also be prohibited.
There are reasons to believe that the First Amendment actually was intended only to protect political speech, and that the evil against which it protected was the suppression of criticism of unjust governments. Moreover, at the time of the American Founding, and into the early 19th century, there was a widespread belief, particularly among the governing classes, that commerce itself was corrupting. This attitude has not entirely vanished in England, where, in certain circles, one still has to apologize for dabbling in the market. In the late 18th century, many Americans believed that trade led to luxury, and that luxury led to the corruption of republican virtue. The pursuit of wealth made one selfish, unconcerned about one’s fellow citizens, and thus unfit for the exercise of political altruism.
Thomas Jefferson worried about the corrupting influence of commerce in general and a central bank in particular, and sought to undermine Alexander Hamilton’s financial schemes. Having failed, Jefferson left George Washington’s Cabinet and returned to his glorious Monticello. From there, he propounded his theory that America ought to be populated by simple yeoman farmers earning subsistence from the land and avoiding the temptations of trade.
Despite the general agreement that commerce was potentially corrupting, there were men like Hamilton who believed that this country, unless it became a great commercial republic, would never have the resources to defend itself against rapacious European powers, hi the struggle with Jefferson, Hamilton won. We got a national bank; we funded the national debt; and the story of the 19th century was one of virtually unrestrained commercial expansion. And, in fairness to Hamilton and my colleague Redish, even the early history of freedom of the press was not free from the taint of commercial speech, hi a 1996 case declaring that states could no longer ban accurate advertising regarding the prices of alcoholic beverages, the Supreme Court observed:
Advertising has been a part of our culture throughout our history . . . Early newspapers displayed advertisements for goods and services on their front pages, and town criers called out prices in public squares . . . Indeed, commercial messages played such a central role in public life prior to the Founding that Benjamin Franklin authored his early defense of a free press in support of his decision to print, of all things, an advertisement for voyages to Barbados.
Even so, it was not until 1975 that the Supreme Court ruled that commercial speech was entitled to First Amendment protection. In a seven-to-two decision (Blackmun for the majority, Rehnquist and Powell dissenting), the Court declared that an advertisement in a Virginia newspaper offering abortion services in New York was speech protected by the Constitution. In recent years, the right to have an abortion seems to have trumped all other constitutional rights, including the free speech rights of anti-abortion protesters. Thus, it is perhaps not surprising that the first case declaring constitutional protection for commercial speech concerned abortion.
Since that ruling, it has been anybody’s guess as to which types of commercial speech are protected. The trend is to protect more and more commercial speech, including advertisements for casino gambling, prescription drugs, liquor, lawyers’ services, and electricity. However, the Court has not been able to bring itself to declare that there is no difference between commercial speech and political speech.
For “favored kinds” of First Amendment speech, some regulation is permitted, including reasonable time, place, and manner restrictions—to this day, you cannot drive your sound truck through a residential district at 2:00 A.M., blaring your pro-abortion views. The presumption, though, is against any regulation, especially those which impose a partial or complete ban. Government must demonstrate a “compelling interest” (whatever that is—no one is quite sure), and the means of regulation chosen must be the least restrictive available.
Thus, in a June 2000 decision, the Supreme Court declared that Playboy‘s adult cable channels, the Playboy Channel and Spice, although perhaps “indecent,” were not obscene. The Court held that the adult channels could not be banned from daytime broadcast as long as individual subscribers had the option of requesting that their cable company block the channels from their homes. The Court conceded that the federal government had a “compelling interest” in protecting children from indecency, but because there was a less restrictive alternative available, the government’s daytime ban could not stand. Since there is usually a less-restrictive alternative, virtually all attempts to regulate or ban non-commercial speech fail. (Those who wonder why Spice and the Playboy Channel were not simply declared obscene, and thus not protected under the First Amendment, have an ally in Justice Scalia. And those who wonder why the Playboy Channel and Spice are not considered commercial speech, since they are sold for a profit, do not understand that, in the Court’s view, the fact that you earn money from speech docs not make it “commercial.” “Commercial speech” is a term reserved for advertising. No justice seems troubled by this limitation.)
So what tests are applied to the second-class category of commercial speech? They differ depending on whether the regulation in question is a complete ban or a supposedly benign restriction designed to prevent deception, hi the Court’s view, “when a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial consumer information, the regulation’s purpose is consistent with the reasons for according constitutional protection to commercial speech and therefore justifies less than strict review.” But “where a State entirely prohibits the dissemination of truthful, non-misleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands.” Whenever there is an attempt to ban commercial speech, the Court asks a series of questions, including, to quote from the official syllabus of the 1999 commercial speech case involving advertising of casino gambling: “(1) whether the speech at issue concerns lawful activity and is not misleading and (2) whether the asserted governmental interest is substantial; and, if so, (3) whether the regulation directly advances the governmental interest asserted and (4) whether it is not more extensive than is necessary to serve that interest.”
These four tests arc not identical to the ones applied in cases of non-commercial speech. To ban or regulate non-commercial speech requires a “compelling” governmental interest, but for commercial speech all that is necessary is a “substantial” interest. To sustain a ban or regulation of non-commercial speech there must be no less restrictive alternative, but for commercial speech a regulation can be upheld if “it is not more extensive than is necessary to serve that [substantial] interest.” In theory, at least, it is easier for government to prohibit or regulate commercial speech, and the Court has suggested that it will not require absolute proof that a regulation “is not more extensive than necessary,” deferring instead to legislatures.
Nonetheless, these four commercial-speech tests give justices plenty of freedom to strike down or sustain the regulation of commercial speech at whim. They are the sort of “balancing tests” popular with justices such as Sandra Day O’Connor, who seem to view the justices’ role as that of super-legislators. Such “balancing tests” are, at bottom, a way for the justices to implement their personal policy choices. Justice Clarence Thomas, the Court’s most outstanding practitioner of plain speaking, understands this. Thomas rejects the four-part test for commercial speech, declaring that where “the government’s asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace,” the four-part balancing test should not be applied because “such [a governmental interest] is per se illegitimate and can no more justify regulation of commercial speech than it can justify’ regulation of non-commercial speech.” For Thomas, “all attempts to dissuade legal choices by citizens by keeping them ignorant are impermissible.”
Thomas’s stance is viewed sympathetically by some of his colleagues, most notably Justice Scalia, who has not gone so far as Thomas. Scalia is the Court’s champion of original understanding and judicial restraint, and while some of his other First Amendment decisions go much further in widening the scope of the First Amendment, he is more cautious about commercial speech. For Scalia,
it would . . . be paternalism for us to prevent the people of the States from enacting laws that we consider paternalistic, unless we have good reason to believe that the Constitution itself forbids them. I will take my guidance as to what the Constitution forbids, with regard to a text as indeterminate as the First Amendment’s preservation of “the freedom of speech,” and where the core offense of suppressing particular political ideas is not at issue, from the long accepted practices of the American people.
There may be an underlying philosophy guiding the Court’s First Amendment jurisprudence, and it ought to give pause to those who might be tempted to treat commercial speech as if it were any other kind of speech. In the recent Supreme Court decision rejecting the regulation of the Playboy Channel and Spice, Justice Kennedy conceded,
When a student first encounters our free speech jurisprudence, he . . . might think it is influenced by the philosophy that one idea is as good as any other, and that in art and literature objective standards of style, taste, decorum, beauty, and esthetics are deemed by the Constitution to be inappropriate, indeed unattainable.
Perhaps Justice Kennedy did not go far enough, because at least one law professor (me)—after 25 years of encountering the Court’s free-speech jurisprudence—cannot help but think it is motivated by a rejection of the Framers’ belief that there could be no order without law, no law without morality, and no morality without religion.
For Justice Kennedy,
The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.
This is the same philosophy expressed in the notorious “mystery’ passage” of Planned Parenthood v. Casey (1992), of which Justice Kennedy was one of the three authors. (None dared claim individual credit.) According to the passage, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
The mystery passage has been invoked to support all kinds of phony constitutional rights, including the “right to die” and the right to enter into same-sex marriages. Proponents of the view that self-actualization is the end of our republican form of government, such as my colleague Redish, take an absolutist view of commercial speech: They see no difference between it and political speech; both expand opportunities for individuals. They would no more allow the government to interfere with advertising than with voting. Anyone with libertarian tendencies cannot help being attracted to that view, but it was not that of the Framers. They placed a higher value on political speech, believing that the welfare of the community and the encouragement of altruism, not the actualization of the individual, was the goal of government.
Those who are ambivalent about, or hostile to, government promoting morality (as are a majority of the current justices of the Supreme Court), will be comfortable with the trend to treat commercial speech (and Playboy’s programming) as if it were no different from the views expressed in the Federalist. However, if you adhere to the Burkean notion, shared by the Framers, that the encouragement of virtue is a government function, and that this is a primary job for state and local governments, the emerging trends in commercial-speech jurisprudence are cause for worry.