THE HIGH COST OF FREE SPEECH In U.S. courts, freedom of speech increasingly means freedom to advertise by Jay Huber Stay Free! #17, June 2000 Most of you already know what free speech is— ent view, granting free speech rights to commer- the ability of people to openly express their cial interests. political, religious, or other views. Commercial Adopted within the Bill of Rights in 1791, speech, on the other hand, is “expression related the Free Speech clause of the First Amendment solely to the economic interests of the speaker.” reads: “Congress shall make no law . . . (Advertising, for example) In the past, U.S. law abridging the freedom of speech.” distinguished free speech from commercial Simple, clear. Maddeningly vague. A uni- speech. Unlike free speech, commercial speech verse can fall within the word “speech,” and it didn’t receive First Amendment protection. Over has avoided easy definition. the past few decades, however, that has There’s no doubt that political speech was changed, and now “freedom of speech” often at the core of the Founders’s concerns when means “freedom to advertise.” they drafted this phrase, and by its adoption What is behind this change? What’s the they established an ideal that robust debate was difference between free speech and commercial healthier for the people than suppression. By speech and why was commercial speech regulat- this measure, political speech educates and ed differently in the first place? What are the enlightens us, furthering democratic self-realiza- arguments in favor or extending protection to tion. The constitutional decisions of the federal commercial speech? What are the arguments courts tout the First Amendment’s role in deter- against it? Think about these questions as you mining truth, which emerges when all compet- read. —CM ing viewpoints see the light of day and are weighed by an engaged citizenry. Law professors cite the First Amendment’s “traditional values of stark image: a A rational decision-making and self-realization.” man, black or No one considered advertising or other white, stands profit-motivated communications as constitu- impassively and stares tionally protected speech until fairly recently. at the viewer. He wears According to legal scholars, the phrase “com- a prisoner’s jumpsuit. mercial speech” did not even appear in any deci- The only words say the sion of any court of the United States until prisoner’s name and 1971. Freedom of speech was an individual that he is on death row. right, protected from abridgment by the govern- The recent Benetton ment. But in 1886, the Supreme Court ruled campaign contains no that a corporation was a “person” for purposes clear statement about of the Fourteenth Amendment, a holding that either clothing or the death penalty. They seem provided grounds to argue that business entities, designed solely to grab your attention and make as well as individuals, are entitled to First you wonder what the hell’s the point. Amendment protection. Advertising? Political message? Claiming no In 1942, a man named Chrestensen point of view, the campaign illustrates how the moored a submarine on New York City’s East two have blurred. Historically, advertising didn’t receive the same constitutional protection as political speech, one form of free speech the Founding No one considered advertising or Fathers had in mind when they drafted the First other profit-motivated communi- Amendment. Political speech was valued for its role in guiding us toward a more just, democrat- cations as constitutionally protect- ic society, “a more perfect union.” But over the ed speech until fairly recently. past few decades the courts have taken a differ- River and began distributing handbills advertis- ing tours of his boat. He soon found that dis- tributing handbills was illegal, so he printed The utter lack of protection for handbills with an advertisement for the sub advertising was nicked at little by expo on one side and a protest against the city’s little until 1976, when the Court refusal to allow him to moor the sub where he pleased on the other. He figured that the politi- finally reversed itself. Virginia had cal message removed his handbills from the banned advertising drug prices, realm of purely commercial activity. The case made it to the Supreme Court, which quickly but the Court struck the ban dismissed Chrestensen’s arguments while barely down. mentioning the First Amendment. The Court said: “We are . . . clear that the Constitution imposes no . . . restraint on government as buy ad time even if they have to tell the truth. In respects purely commercial advertising.” contrast, political speech once suppressed may This utter lack of protection for advertising stay squashed. was nicked at little by little until 1976, when the In 1980 the Court established a formal test Court finally reversed itself. Virginia had for determining whether restrictions on commer- banned advertising prescription-drug prices. The cial speech are constitutionally permissible–now Court struck the law down, finding that the familiar in the courts as the Central Hudson pricing information was important to consumer test. The Court defined commercial speech as decision-making. More broadly, the Court held “expression related solely to the economic inter- that Americans need such information to evalu- ests of the speaker and its audience,” and ruled ate our free-market economy and determine that government may ban “forms of communi- whether it is in need of regulation or refinement. cation more likely to deceive the public than to The Court also rejected Virginia’s argu- inform it, or commercial speech related to illegal ment that drug-price advertising would lead to activity.” To regulate commercial speech that is errant, irrational behavior by consumers; drug- neither misleading nor unlawful, the Court price advertising, Virginia argued, would established a four-part test: 1) the State has to degrade the pharmaceutical profession. Legal assert a “substantial interest” to be achieved in scholar Nat Stern has remarked that the Court’s regulating the speech; 2) the regulation must be logic “embodied a constitutional judgment that in proportion to that interest; 3) the regulation ‘the dangers of suppressing information’ out- must directly advance the State interest; 4) the weigh ‘the dangers of its misuse if it is freely regulation must be the most limited means avail- available.’ ” Justice Stevens reiterated the point able to achieving the State’s interest. in a 1996 case challenging Rhode Island’s ban This is a difficult test to meet, so many on advertising liquor prices. The state argued attempts to restrict commercial speech fail. A that it was promoting “temperance and the rea- corporation’s right to free speech can even sonable control of the traffic in alcoholic bever- trump individual’s privacy. Such was the ruling ages,” but the Court struck the law down. in a 1999 case that overturned an FCC regula- Stevens wrote: “The First Amendment directs us tion protecting consumers from telecom compa- to be especially skeptical of regulations that seek nies’ unauthorized use of personal data. In to keep people in the dark for what the govern- effect, the court said US West’s use of personal ment perceives to be their own good.” data to communicate with customers fell within Despite this protection, commercial speech its free speech rights. In 1993 the Supreme remains a lesser category than political speech Court stated: for two reasons: Government can regulate it for truthfulness, and it is “hardier,” or more The commercial marketplace, like other resilient, than political speech–people will still spheres of our social and cultural life, pro- vides a forum where ideas and information Outdoor advertisers are successful- ly using the First Amendment to defend themselves against bill- board bans. flourish. Some of the ideas and information are vital, some of slight worth. But the gen- eral rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a commu- nication that does no more than propose a commercial transaction is entitled to the cov- erage of the First Amendment. But the Court doesn’t acknowledge that com- mercial speech communicates few “ideas.” Direct appeals to consumers are rare; ads now revolve around short narratives, jokes, or visual wizardry. Advertising can drape itself in consti- tutional armor but needn’t embody constitution- The Founding Fathers considered free speech an invi- al values. This is particularly insidious in the olable right of citizens, essential for self-expression billboard wars taking place in U.S. cities. and self-realization. although the First Amendment doesn't distinguish free speech from commercial Outdoor advertisers are successfully using the speech or advertising, it's a pretty safe bet than a First Amendment to defend themselves against twelve-story billboard on 6th Avenue in Manhattan isn't billboard bans and zoning restrictions. . . what they had in mind.