Usually, free speech issues arise in the context of governmental suppression of expression. However, the Supreme Court has long recognized that the values fostered by the free expression guarantee may be equally undermined by the compulsion of expression. While certain exceptions exist, it is well established constitutional doctrine that in the context of noncommercial speech, compelled expression is for the most part unconstitutional. The situation is far more confused, however, in the context of compelled commercial speech. Several decisions of the Court have sent frustratingly mixed signals on the subject, leaving the area woefully uncertain. This chapter argues that the equivalency principle, which this book argues throughout should apply to measure the constitutionality of the suppression of commercial speech, applies with just as much force to compelled commercial expression. The chapter reaches this conclusion by applying the four-perspective framework developed in Chapter 1. But as is the case in other applications of the equivalency principle, it does not necessarily follow that compelled commercial speech will be invalidated in every instance in which comparable noncommercial speech would be invalidated. To be sure, he First Amendment value of the two forms of speech must be deemed identical. But by their very nature, certain forms of commercial speech give rise to a far greater degree of confusion or harm, and as a result in these relatively narrow circumstances, compelled commercial speech will be constitutionally appropriate where comparable compelled noncommercial speech will not. The categorical reach of these exceptions is determined by application of the taxonomy of harms, developed first in Chapter 2.

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.

In addition to summarizing the arguments made throughout this book, the concluding chapter anticipates and responds to two critiques of the book’s theory. The first of those anticipated critiques is that by recognizing what could arguably be deemed a “loophole” in the equivalency principle which allows for greater restriction of commercial speech when the harms caused by commercial speech are greater than those caused by comparable noncommercial speech, the theory advocated here would change the current doctrinal framework very little. This critique, however, ignores the numerous situations in which the Court has consistently provided reduced protection to commercial speech even though it fails to give rise to any more harm than comparable noncommercial speech. Acceptance of the theory advocated here, then, would dramatically alter the existing doctrinal framework, while preserving a common sense safety valve to take account of situations involving the compelling danger of harm. The second anticipated critique comes from the opposite perspective, namely that by so dramatically increasing the level of protection given to commercial speech, the equivalency principle would inevitably lead to a form of constitutional “dilution.” In other words, if both commercial and noncommercial speech are to receive equivalent protection, the Court will have to reduce protection for both categories to some form of lowest common denominator. Such an argument, however, begs the question that is the subject of debate: If, as argued in this book, commercial and noncommercial speech are of equivalent value, then there is no reason to fear application of equivalent constitutional treatment. In any case, this chapter argues that the greater danger is a form of “reverse dilution.” People are either sheep, or they are not. They are either capable of being trusted to make lawful choices on the basis of free and open debate, or they are not. Thus, if suppression of commercial speech is grounded in the fear that the people cannot be trusted to make such lawful choices and therefore debate must be censored by government, there is no basis for finding the people any more trustworthy to make political choices. The dilution debate thus reinforces the argument for the constitutional equivalency advocated throughout this book.

As explained in Chapter 2, it is well established that false commercial speech is categorically excluded from any level of First Amendment protection. Chapter 2 explains why the constitutional issue is far more complex than the Supreme Court’s simplistic approach suggests. However, when the issue of falsity involves questions about the accuracy of scientific assertions made in the form of commercial speech, this chapter argues that the issues are even more complex. In the context of pure scientific speech, the First Amendment has rightly been construed to give wide latitude is to the speaker, even if the scientific views expressed run contrary to accepted scientific orthodoxy. It is not immediately clear why, if the commercial speaker expresses the exact same scientific position to much the same audience, such commercial speech is not equally deserving of First Amendment protection. The only conceivable basis for distinction, the existence of profit motivation for the commercial speech, is invalid. In no other context of First Amendment jurisprudence has protection been reduced due to the speaker’s self-interest in acceptance of the expression. Indeed, many of the scientists whose factually questionable scientific theories receive full constitutional protection also stand to gain substantially from acceptance of their views, yet no one suggests that for this reason their expression should be denied First Amendment protection. This chapter argues that the equivalency principle should apply in the context of commercial scientific claims, as it does in all the other areas discussed in this book. This does not mean that knowingly or recklessly false scientific claims deserve protection, but the same should be true even when the scientific claims are made by scientists themselves.

The statutory or common law right of publicity recognizes a right in individuals to control the use of their name or likeness for commercial purposes. The right enables an individual to sue to punish or prevent such commercial uses. However, with the First Amendment in the background, both state legislatures and courts recognized a sub-constitutional “newsworthiness” exception. This exception permits the traditional press to use photos or names, even though used for the purpose of making profit, when they are deemed newsworthy.As a result, the traditional institutions of the press are largely exempted from this cause of action while purely commercial uses of names or likenesses remain the target of the claim. Amazingly, at no point have courts enforcing the right of publicity given serious consideration to the implications for its constitutionality of the Supreme Court’s development of the commercial speech doctrine. This chapter argues that recognition of the commercial speech equivalency principle applies nowhere more forcefully than in this instance. A commercial advertisement will often provide information about individuals to the public that would fall under the newsworthiness exception for the traditional press.To the extent that commercial speech provides the exact same information to the exact same audience, it is not clear why statements by the traditional press receive quasi-First Amendment protection while purely commercial expression does not. Hence it is illogical not to provide the same protection to purely commercial speech. To the argument that commercial speech receives reduced protection because its goal is profit, the obvious response is that the profit-making press possess the very same commercial goal.