Freedom of Commercial Expression

Abstract

"Freedom of Commercial Expression" is a critical examination of the commercial expression doctrine - the doctrine that commercial expression or speech merits constitutional protection in much the same way, and for much the same reasons, as paradigm forms of constitutionally protected expression such as political or artistic expression. The aim of the book is to show that the commercial expression doctrine is not justified in the terms in which and by the arguments which its supporters have typically offered.

The project of dismantling the justification for the commercial expression doctrine proceeds as follows. The book is in three parts. Part I examines in some detail the institutional history behind the commercial expression doctrine in the United States, Canada and Europe. Apart from the obvious purpose of acquainting readers with the case law, the discussion serves two further purposes. It provides some introduction to the issues of normative justification on which the remainder of the book will focus. It also reveals that the institutional history of the commercial expression doctrine is full of historical accidents and contingencies. In particular, the reasoning of the U.S. Supreme Court in the founding case for the commercial expression doctrine, Virginia Board (1976), is shown to contain many fallacies. Overall, eight different arguments for the commercial expression doctrine can be found in the case law. The arguments that have been the most prevalent in judicial opinions and theoretical commentaries alike will be selected for analysis.

Part II elucidates the basic theoretical assumptions of the book. The most important is the claim that the justification for a principle of free expression must be "top-down", from principles concerning the normative value of freedom of expression to a conclusion that this or that form of expression is one that should be free. That there is in some context an example of expression or speech in some ordinary sense is never by itself enough to subsume the case under a freedom of expression principle. This general methodological claim is pursued by considering three instances of the intrusion of freedom of expression principles into adjudication of a "commercial" matter - the cases of tortious interference with contract, advertising of off-label uses of pharmaceutical drugs, and the right of publicity. The first two do not, while the third does, satisfy the requirement for a suitable "top-down" justification.

Part III then focuses on the actual arguments that courts and commentators have introduced to justify the commercial expression doctrine. The arguments in various ways presume the classic liberal model of a human right as belonging intrinsically to the autonomous human person. Chapter 9 looks at the issue of whether a corporation may be held to be an autonomous person of the relevant kind. I will show that there are severe obstacles to any such claim. Many defenders of the commercial expression doctrine will not disagree. The predominant way to root constitutional protection for freedom of commercial expression in some right of an autonomous person is by appealing to a supposed right to hear or receive information. The next three chapters explore different ramifications of this thought. Chapter 10 considers the very idea of hearers' rights to receive information, and how far the plausible cases of such rights are available to support the commercial expression doctrine. The conclusion is that the idea of a hearer's right to receive expression has validity only in very narrow contexts, and those are of little value to support the commercial expression doctrine. The hypothesis that there is a general hearers' right to receive information is indefensible. Chapter 11 looks at the claim that freedom of commercial expression merits constitutional protection because it promotes the freedom of expression value of self-realization and self-fulfilment. The conclusion is that it does not. Chapter 12 examines the claim made by supporters of the commercial expression doctrine that government regulation of commercial expression is inherently paternalistic, and so objectionable on such grounds. The chapter shows that the claim has no force. There are genuine cases of paternalism and of audience manipulation. Government regulation of commercial expression is far from such paradigms.

The next two chapters approach freedom of commercial expression from a different direction, that of the supposed social utility of such freedom, especially as exemplified by the so-called "free flow of commercial information", which flow regulation of commercial expression will unusefully constrict. In Chapter 13, it is shown to be a naive construal of the relevant economic issues to suppose that the social value of information is invariably achieved by an unregulated market in information. Moreover, to assign powers of economic regulation to courts, as the constitutionalizing of advertising regulation would effect, poses serious normative issues of proper institutional design, from both a political and a practical perspective. Chapter 14 considers a different kind of argument for the social value of freedom of expression. It can been argued that freedom of expression has value as a public good in ways not reducible to aggregated good to individuals. In theory, such an argument might also apply to freedom of commercial expression. The chapter shows, however, that it does not, and that commercial expression cannot be a "public good" of the relevant kind.

It emerges strongly from the preceding analysis that the support for the commercial expression doctrine is achieved far more by rich and seductive rhetoric than by valid argument.

Keywords: Freedom of expression, constitutional law, jurisprudence, advertising, comparative constitutional law