The Commercial Speech Doctrine in the United States: False Promise and Promising Approaches for Protecting Public Health

Abstract

This article reviews the U.S. Supreme Court’s approach to the regulation of commercial speech, with a focus on the doctrine’s application to the regulation of tobacco products. Although the Supreme Court has at various times signaled a willingness to restrict speech that threatens public health, its decisions have more often been motivated by an overriding concern that restrictions on commercial speech constitute unwarranted governmental paternalism. This anti-paternalism concern has become the dominant feature of the Court’s commercial speech jurisprudence, and as a result, the United States is now falling further and further behind other counties in the regulation of tobacco marketing and the prevention of other public health threats. Nonetheless, there are promising alternative doctrinal approaches that tobacco control advocates have not yet pursued. Instead of pursuing broad-based limits on tobacco advertising, advocates could more narrowly target tobacco industry marketing practices that are misleading, manipulative, or appealing to minors. A strong case can be made that restrictions on these types of tobacco marketing are fully consistent with the Supreme Court’s First Amendment doctrine, even after the Sorrell decision.

Keywords: First Amendment, Constitutional law, Public Health, Tobacco

JEL Classification: K19, K29, K39, K49, K32