Pragmatism, Paternalism, and the Constitutional Protection of Commercial Speech

Abstract

Two key perspectives have emerged in the Supreme Court’s decisions about First Amendment protection of commercial speech. The anti-paternalism view, originally embraced by the Court’s most liberal members but now advanced by Clarence Thomas, holds that the government has only a narrow interest in preventing false advertising. To the extent that commercial speech is not fraudulent or misleading, the government must simply let people hear it and decide for themselves whether they find it persuasive. Other judges argue that courts need to be more pragmatic about the effects of advertising and more deferential to government attempts to promote public health and safety. That view was originally developed by conservative William Rehnquist, while its current champion is liberal Stephen Breyer. This Article traces these two lines of thought through the Supreme Court’s key rulings and then examines how they affect significant commercial speech issues now facing lower courts. In particular, the Article looks at how pharmaceutical companies have been fighting with the FDA about free speech issues relating to promotion of off-label uses of drugs, the tobacco industry has challenged the graphic images that the federal government wants to add to warning labels on cigarette packages, cell phone companies have sued to block a San Francisco ordinance requiring them to give warnings about radiation emitted by their products, and a provision in the “Obamacare” statute will require chain restaurants to start listing the calories in each item on their menus.

Keywords: first amendment, freedom of speech, commercial speech, supreme court, paternalism, pragmatism, prescription drugs, FDA, off-label, tobacco, advertising, cigarettes, graphics, cell phones, radiation, menus, calories, calorie counts, Bloomberg, soda