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.