CROSSING OVER THE LINE

There is much in Alex Kozinski and Stuart Banner's informative treatment of the doctrinal history of commercial speech with which we take no exception. For example, the result in Valentine v. Chrestensen ⁶³ might be attributed to reasons like those ably set out by Kozinski and Banner. ⁶⁴ A court sitting in 1942, rather than 1993, would not have understood mass advertising as speech entitled to First Amendment protection because the merger so obvious today between commercial discourse and the American culture had not yet sufficiently developed. Accordingly, we are very much intrigued by our colleagues' historical and doctrinal findings. But, sometimes, in toeing their line they cross over our line. The result of this trespass is misrepresentation.

Kozinski and Banner are blunt: Collins and Skover "say [that commercial speech] deserves no protection ...." ⁶⁵ In light of our reply to Rodney Smolla, we need not say more on this point. We do, however, invite Leo Bogart to take the stand as a witness for the defense:

The authors take us right up to the brink of the conclusion that advertising should not enjoy the protection of the First Amendment, but they never make it over the edge. While they set up a vigorously phrased brief against advertising, they distance themselves from it in the concluding section of their paper .... ⁶⁶

The greater force of the Kozinski­Banner critique turns on two other arguments. They describe our work first as "ahistorical," ⁶⁷ weakened by "a romanticized vision of the past." ⁶⁸ "We have no reason to believe," Kozinski and Banner counsel our readers, "that reasoned discourse represented any greater fraction of total communication 200 or 100 years ago than it does now." ⁶⁹

That discourse may have been more enlightened a century or two ago is a claim that we neither do nor need make. What we do opine, however, is that functionalist "reason­why" advertising represented a greater proportion of mass commercial discourse one hundred years ago. And, more importantly, even if Kozinski and Banner can show otherwise, the task of reconciling the traditional First Amendment to today's commercial expression is thereby made no easier.

Romanticizing the past is one thing; romanticizing the present is yet another. Who among us is the out­of­touch­with­reality romanticist? Is it the one who recognizes dissonance between modern mass advertising and the First Amendment's touted norms of rationality and individuality? Or, is it rather the one who continues to justify First Amendment protection for commercial speech along those traditional lines? Kozinski and Banner exhibit a sophisticated understanding of the workings of commercial advertising. Why, then, do they appear to toe the old First Amendment line that romanticizes the present? (Gentlemen, if you hold otherwise, just speak the words and the truth will set you free.)