The Structure of First Amendment Analysis

All of these consequences of commercial communication might prompt us to reconsider the structure of traditional First Amendment analysis. Is the central question, as typically thought, whether commercial expression should receive constitutional protection? Or is it whether the government should act affirmatively to fortify the First Amendment wall against the battering ram of mass commercial advertising? Historically, it was thought that the sole or primary enemy of free expression was the State. Today, the consequences of commercial communication reveal that the private captains of the advertising empire may prove to be an enemy of equal stature. In this light, Justice Hugo Black's 1945 commentary on First Amendment press freedoms takes on a bolder and broader meaning:

It would be strange indeed ... if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom.... Surely a command that the government itself shall not impede the free flow of ideas does not afford non­governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom.... Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests. ¹⁶⁵

To restructure the First Amendment so as to permit some governmental regulation of corporate advertising messages is to set the legal guarantee against the commercial culture. This point, however, ought not be discussed without first considering what category of commercial communication might buttress, rather than damage, the traditional edifice of the First Amendment.