Tamara Piety has an interesting new article, titled “Against Freedom of Commercial Expression,” in 29 Cardozo Law Review 2583 (2008), which you can download on SSRN. Here’s the abstract.
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Preservation of freedom of expression is properly understood as one of the bulwarks of our constitutional liberty. Yet the prohibition on government regulation of expression has never been considered absolute. One area of less than absolute protection is found in the commercial speech doctrine. Government may regulate commercial speech for its truth where such regulation advances a substantial governmental interest which is advanced by the regulation and there is a good fit between regulation’s aims and the regulation itself. Some argue that even this intermediate level of scrutiny is too much and that commercial speech should be fully protected. Alternatively, proponents of a more protective standard for commercial speech would have the doctrine’s application limited to traditional advertising. In this article Prof. Piety argues that both of these arguments should be rejected in light of experience and of the interests the First Amendment is commonly supposed to further. Since, by definition, all speech by a for-profit corporation is commercial, because the corporation is a fictitious entity created by law it is not an appropriate rights holder under the First Amendment. For these reasons the term commercial speech should be interpreted broadly to encompass all expression by for-profit corporations. Commercial expression is enormously influential and so when it is false it can be enormously costly. Government may be the only institution powerful enough to preserve the rights and powers of individual citizens against increasingly powerful private interests.