READING BETWEEN THE LINES

We appreciate the caution with which Rodney Smolla sometimes approaches our arguments. When addressing us directly, he never accuses us of withdrawing commercial speech from the orbit of the First Amendment. Thus, we only "intimate" ²⁴ governmental regulation, or "apparently" ²⁵ contemplate it, or "appear" ²⁶ to be of such a mind. Yet, he cannot resist doing indirectly what he refrained from doing directly. For, by Smolla's account, we are evidently in favor of "disqualifying most modern mass advertising from constitutional protection" or alternatively "reducing the level" of that protection. ²⁷ And as the alleged "proponents of regulation," ²⁸ we simply have not made a case for "enact[ing our preferences] into law." ²⁹

Mindful of what we actually stated in Commerce & Communication, we ask our readers to judge for themselves:

• Nowhere do we state what Smolla implies we do. In fact, we offer much to the contrary; we dedicate some four pages of argument to critiquing the progressive broadside against commercial speech in the American culture. ³⁰

• Our question: "How can a free speech theory with strong socialist or even neo­Marxist overtones be adopted by a capitalistic culture? Part of being the American capitalistic culture is having the American mass advertising system." ³¹

• Our conclusion: "Advertising has become an essential thread in the American cloth. Ultimately, the progessives' radical critique is likely to fail because consumerist America would inevitably recognize that one cannot remove the thread without unraveling the cloth." ³²

• Discussing the futility of true­false distinctions in much commercial speech, we note "the pointlessness of legal regulation of pecuniary truth." ³³ . To repeat: "Speaking from a First Amendment definitional standpoint, it is increasingly difficult to demarcate the realms of the commercial from those of the political and cultural, to distinguish commercial expression from the most preferred forms of democratic speech." ³⁴

• In the clash between press freedom and the public's so­called right to know, we're rather forthright: "[T]he right to know cannot co­exist easily with commercial mass advertising." ³⁵

• We take some issue with Justice Hugo Black's implication that the First Amendment endorses affirmative governmental regulation of private commercial communication: "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." ³⁶

Certainly, Smolla (and the Kozinski­Banner team) should understand that we are not purposively bent on killing the sacred cow ³⁷ of commercial­ speech protection. As long as they and their like address the apparent dissonance between traditional First Amendment theory and praxis, the cow might be milked for all it's worth.