Skip to main content Accessibility help
×
Hostname: page-component-77c89778f8-gvh9x Total loading time: 0 Render date: 2024-07-17T02:03:17.924Z Has data issue: false hasContentIssue false

1 - Commercial Speech and the Values of Free Expression

Published online by Cambridge University Press:  21 May 2021

Martin H. Redish
Affiliation:
Northwestern University, Illinois
Get access

Summary

For most of the nation’s history, commercial speech has been the First Amendment’s pariah. Commercial advertising was viewed by judges and scholars alike as inherently intertwined with property rights, rather than the First Amendment’s right of free expression. Over the last four decades, however, that situation has changed dramatically. Though purporting to provide commercial speech only an intermediate level of scrutiny, the Court has developed a highly protective standard for this communicative category. Nevertheless, there remain a number of significant differences in the Court’s interpretation of the First Amendment between commercial and noncommercial speech that still treat commercial speech as far less worthy of constitutional protection. This chapter provides a new framework of First Amendment analysis, called the “perspective framework,” which demonstrates that, as a matter of both logic and the foundations of First Amendment theory, commercial speech deserves a level of protection equivalent to that given noncommercial speech. The four perspectives of free speech theory put forward in this chapter are the speaker perspective, the listener perspective, the regulatory perspective, and the rationalist perspective. Application of each of these perspectives, the chapter argues, dictates the “equivalency principle” advocated throughout this book. However, while the equivalency principle dictates that commercial and noncommercial speech be measured by the very same standards, it will not always follow that both will receive protection under the same circumstances. In certain instances, because of surrounding circumstances commercial speech may give rise to the danger of more significant harm than would comparable noncommercial speech. But the point made throughout the book is that if this conclusion is to be reached, it is because of a variance in the danger of harm caused by the speech, rather than because of an assumed lesser value of commercial speech. After this chapter provides a theoretical model for measuring free speech protection and explains the reasons that reduced protection for commercial speech violates that model, the remaining chapters apply that theoretical framework to specific doctrinal areas of First Amendment jurisprudence.

Type
Chapter
Information
Commercial Speech as Free Expression
The Case for First Amendment Protection
, pp. 1 - 20
Publisher: Cambridge University Press
Print publication year: 2021

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×