Moneytalk: Against Constitutionalizing (Commercial) Speech

Abstract

As seems fitting, the debate over free speech is one of the most heated and intense on the academic and political agenda. The topical problems of pornography, hate literature, election campaign financing and freedom of information attest not only to the importance of these exchanges, but also to the confusion and indirection of the different contributions. Like moths drawn to the light, legal theorists have been irresistibly attracted to the bright beacon of free speech; the literature on the American First Amendment is truly enormous. The challenge and ambition is as worthy as it is important - to ensure democracy's fragile flame is kept aglow so that its ennobling light can suffuse and enhance the practices and possibilities of social and political life. However, like their lepidopteral counterparts, most writers on free speech have found its attraction to be fatal. Despite a plethora of different approaches, they have been unable to solve its mysteries or fathom its secrets.