Conceptualizing Commercial Speech

Make no mistake, the Justices have long struggled with how to conceptualize commercial speech under the First Amendment. Between 1942 and 2002, the Court rendered some forty-two commercial speech opinions²⁶⁹ involving approximately thirty categories of expression,²⁷⁰ ranging from contraceptive²⁷¹ and abortion²⁷² advertising to alcohol²⁷³ and tobacco²⁷⁴ advertising; from handbills²⁷⁵ to billboards;²⁷⁶ from optometrist²⁷⁷ to attorney²⁷⁸ advertising; and from election²⁷⁹ to electric utility²⁸⁰ advertising. And cases continue to be accepted as the commercial speech doctrine, with all its ramifications, expands in a variety of directions.

Assuredly, the Court’s sympathy to this line of cases invites yet more litigation, and that litigation invites the Court to reconsider why it should or should not protect such expression as it ventures into new areas. For example, is commercial expression protected primarily because it provides truthful consumer information necessary to informed decisions in the marketplace?²⁸¹ By the same token, is protection to be withheld when such expression stands to harm consumers?²⁸² Is there any role for government paternalism?²⁸³ Depending on how those questions are answered, what exactly is “commercial speech”? How commercial does it have to be in order to be branded “commercial”? Can commercial speakers, whoever they are, be compelled to endorse a government message about their products if they disagree with that message?²⁸⁴ Is intermediate scrutiny the appropriate standard of review in commercial speech cases?²⁸⁵ And, what about “breathing space” in the commercial context? Does that principle suggest that some measure of false or misleading information must be tolerated?²⁸⁶

What made Nike v. Kasky such a potentially exciting case was that such questions stood to be answered. But, alas, that wisdom was never forthcoming. Hence, the insights found in the thirty-four briefs on the merits²⁸⁷ in Nike were never put to good use. That is, they were never the basis for a Supreme Court First Amendment ruling. Gladly, some of those arguments have been revived for publication in this Symposium. The briefs-turned-articles,²⁸⁸ together with their companion articles²⁸⁹ here, provide a fuller measure of analysis by which to consider the functions and future of the commercial speech doctrine. To put those articles into bold relief, however, we first explore the principles and perspectives at tension in the Nike controversy.