Commercial Expression and Business Regulation in the Shadow of Citizens United and Sorrell

Abstract

Since the extension of full-bodied speech freedom to business corporations in the Supreme Court’s Citizens United opinion, change has begun to take place in the related first amendment field of commercial speech. The ultimate destiny of the commercial speech doctrine itself is uncertain, but changes in the existing doctrinal framework have begun to emerge. Our purpose is to assess those changes in light of Citizens United and to explore their implications more generally for the existing business regulatory system, a system built heavily on regulation of speech.

We will begin our analysis with the first commercial speech case decided by the Court since Citizens United, Sorrell v. IMS Health Inc. Sorrell is a case that implies significant change in the commercial speech standard and, more fundamentally, raises important definitional questions about the very meaning of speech in the commercial speech setting.

In light of our analysis of Sorrell, we will turn to three selected areas of business regulation in which the First Amendment’s fuller application is likely to be consequential and in which litigation testing the government’s regulatory power has begun in earnest. These areas are prescription drug regulation by the FDA, securities regulation by the SEC, and federal tobacco packaging and related controls on advertising and marketing. Our purpose in looking at these areas will be illustrative – to explore a larger field of change and its consequences for speech-based business regulation in general.

We conclude that the Court’s decisions will produce significant change in the first amendment scrutiny applied to government regulation touching upon the expressive conduct of business corporations. At the very least, the standard applied to commercial speech regulation will be materially strengthened and the meaning of protected expressive action in the business environment will be clarified and greatly expanded. That expansion is likely to include a continued shift in Commercial Speech theory from a “right to receive” speech model to a liberty-based model for corporations and other commercial speakers, increased condemnation of paternalism as a justification for regulation, and of course tightened means/ends scrutiny. It will also include claims premised on access to and use of proprietary and public data and information for commercial purposes, information which, at present, is not available to commercial entities.

Keywords: Constitutional Law, Constitutional Law Judicial Review, Constitutional Law Rights and Liberties