In my last post, I criticized Cass Sunstein's originalist case
against the colorblind constitution. Here I discuss Sunstein's
criticism of Scalia and Thomas for their views on commercial speech.
Sunstein writes:
Conservatives
tend to believe the First Amendment requires courts to invalidate many
restrictions on commercial advertising. But until 1976,
the Supreme Court didn’t believe that the First Amendment protected
commercial advertising at all. It would take a lot of work to establish
that the constitutional protection that some would give to commercial
advertising can be traced to the original understanding in 1791.
This is quick, too quick. To begin with, the First Amendment did not have much action until the 20th
Century (in part because it was not applied against the states and in
part because it was interpreted narrowly). Once it was applied, we were
in a world dominated by progressive and New Deal ideas. Thus, it would
be no surprise that these eras sought to draw a significant distinction
between political and commercial speech. (And it is not that
surprising that Justice Scalia is less receptive to commercial speech
protection than Justice Thomas is, since Scalia seems more influenced by
the neo-progressive view that was dominant when he went to law school.)
But
this world view – which treated commerce as part of a lower realm where
constitutional rights did not reside – was not part of the world view
either of the Framers of the original Constitution or of the 14th
Amendment (which might be relevant to the incorporated First
Amendment). Thus, there is little reason to believe that these Framers
were not intending to protect commercial speech. On the contrary, they
prized property and commercial freedom. And some of the classic freedom
of the press incidents involved advertisements, as with a famous
Benjamin Franklin advertisement. Thus, one might start with a
presumption that a term like “freedom of speech” covered all speech, not
just political speech.
In addition, if one looks at the laws at
the time, they were generally consistent with the protections for
commercial speech that the Supreme Court has drawn. The law prohibited
fraud but the extensive regulation of advertising and commercial speech
that the 20th Century brought did not exist either in 1791 and 1868. This also suggests that commercial speech might be protected.
In making these arguments, I have been relying on the work of John McGinnis and Dan Troy.
Their work has convinced me that there is a reasonable case to be made
for covering commercial speech. Much more work is needed to nail down
the case, but at this point I think the arguments for commercial speech
protection outweigh those against it.
Not only do we need more
originalist work on commercial speech, but also on freedom of speech
generally. While Eugene Volokh has done some excellent work,
one scholar is not enough. My sense from reviewing the historical
materials is that the original meaning of free speech is wide but
shallow. That is, many areas are protected, such as commercial speech
and symbolic speech,
but they are not protected as strongly as many moderns seems to
believe. My sense is that New York Times v. Sullivan provides a
stronger protection for speech than the original meaning allows.
Next time, I will discuss Sunstein’s attack on regulatory takings.
Posted at 7:51 AM