The First Amendment and Commercial Speech
To be published, in French, in Liberté d'expression en Europe et aux Etats-Unis (Dalloz, 2008).
After a quick summary of constitutional treatment of commercial speech, this essay outlines four reasons why commercial speech should be denied First Amendment protection. Working from the claim that the primary rationale for constitutional protection of speech is the mandate that government respect individual freedom or autonomy, the essay argues: 1) that the individual does not choose, but rather the market dictates the content of commercial speech; 2) that the commercial speech should be attributed to an artificial, instrumentally entity – the business enterprise – rather than the flesh and blood person whose liberty merits protection; 3) market exchanges involve the exercise of power, not the expression of values and solidarities, and exercises of power should always be subject to legal regulation. 4) The essay also recommends denying protection on the basis of a theory of speech freedom that focuses on protection of dissent.
Date of Authorship for this Version
commercial speech, free speech, First Amendment, autonomy, dissent
Baker, C. Edwin, "The First Amendment and Commercial Speech" (2008). Scholarship at Penn Law. 182.