Against Freedom of Commercial Expression


An article that announces itself in the title as “against freedom” has a heavy burden of persuasion to carry. At this time and in this place, it seems almost un-American to be “against freedom,” (however much our civil liberties have in fact been circumscribed in recent years). Nevertheless, the most significant word in the title is not “against” or “freedom,” but “commercial.” Conventional wisdom in the First Amendment area would have it that there is no meaningful basis on which to distinguish between commercial speech and other speech for purposes of the First Amendment. And in recent years the courts seem to be ever more prone to find that commercial speech is based as much on the speaker’s right to speak as on the public’s right to hear. This article analyzes the foundational cases and the principal framework set up by Thomas Emerson of the interests the First Amendment is thought to protect and concludes that this trend is in conflict with the doctrine’s foundations and with the purposes of the First Amendment. In addition, it is argued that the laws governing corporations suggest that unfettered corporate and commercial expression may have negative consequences for public health, public debate on issues of public concern, the availability of information, equality, and perhaps democracy itself.


Business Organizations Law | Communications Law | Constitutional Law

Date of this Version

March 2006