Commercial Speech, First Amendment Intuitionism and the Twilight Zone of Viewpoint Discrimination

Abstract

In this article, I seek to demonstrate that arguments made by scholars against First Amendment protection for commercial speech may be divided into three categories: (1) rationalist, (2) intuitionist, and (3) ideological. I argue that all three forms of opposition to commercial speech protection suffer, either directly or indirectly, from the same fundamental flaw: each constitutes or at the very least facilitates creation of a constitutionally destructive form of viewpoint discrimination. I show that all of the specific rationales for opposing First Amendment protection for commercial speech are fatally and illogically underinclusive: In each case the justification asserted to support reduced protection for commercial speech logically applies with equal force to one or more categories of fully protected non-commercial expression, yet those advocating reduced protection for commercial speech readily provide full protection to the categories of non-commercial expression that suffer from the very same defect. Thus, what superficially appears to constitute a plausible and principled rationale for reducing protection for commercial speech in reality is applied¿irrationally and unjustifiably¿to commercial but not to various forms of fully protected speech. Such irrational underinclusion represents a classic form of sub rosa viewpoint discrimination. In this case, the viewpoint being discriminated against, while not embodied directly in the commercial speech itself, is a belief in a capitalist system of which all commercial speech is a part. Ironically, then, speech which some say should be denied protection because it fails to deal with the political process, in reality is likely excluded from the First Amendment's scope by many for what amount to foundational ideological concerns.

Keywords: first amendment, commercial speech, speech, viewpoint discrimination, expression

JEL Classification: K10, K19, K30, K39, K40, K49