Answering Kozinski & Banner

Not only is our work described as ahistorical, but Kozinski and Banner consider it "antihistorical" as well. ⁷⁰ Dividing the universe of First Amendment interpretations into two categories ­ "the history­based and the theory­based" ⁷¹ ­ Kozinski and Banner label ours "as close to a pure theory­ based [approach to the First Amendment] as one is ever likely to find." ⁷² They charge: "The essay contains no mention of the actual words of the First Amendment, no discussion of any cases interpreting the First Amendment ..., and no attempt to discern what the real­life First Amendment might mean." ⁷³

We plead no contest to the charge that we have not added to the voluminous and often hackneyed debate droning on the subject of historical intent and its relationship to constitutional interpretation. It is enough for our limited purposes to remind folks that James Madison, the Father of the First Amendment, was not mad about this method. ⁷⁴ And we leave it to our colleagues to engage in the more esoteric debate as to whether even mechanical historicism is not in some way theory­based. Since we ultimately take no stand on whether commercial speech should or should not be constitutionally protected, we trust that history and decisional law will support us in some respect.

If Kozinski and Banner must divide the universe of First Amendment thinking, why must it be restricted to history­based or theory­based approaches alone? Why can't the "real­life First Amendment" (their words, our emphasis) ⁷⁵ be understood from the vantage point of the real­life experience of commercial discourse? To do that would require yet an additional approach­what in another essay ⁷⁶ we call a "cultural approach" to the First Amendment. This approach asks several significant questions: If we look at American discourse as it is, rather than as it should be, what would we find? Having made such a discovery, what then would our notions of the First Amendment be were they premised on that experience? Nothing here should be unfamiliar to the careful reader of Commerce & Communication who is invited to consider an approach to the First Amendment consistent with the realities of the marketplace of commercial discourse.