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Abstract:
Preservation of freedom of expression is properly understood as one of the bulwarks of our constitutional liberty. Yet the prohibition on government regulation of expression has never been considered absolute. One area of less than absolute protection is found in the commercial speech doctrine. Government may regulate commercial speech for its truth where such regulation advances a substantial governmental interest which is advanced by the regulation and there is a good fit between regulation's aims and the regulation itself. Some argue that even this intermediate level of scrutiny is too much and that commercial speech should be fully protected. Alternatively, proponents of a more protective standard for commercial speech would have the doctrine's application limited to traditional advertising. In this article Prof. Piety argues that both of these arguments should be rejected in light of experience and of the interests the First Amendment is commonly supposed to further. Since, by definition, all speech by a for-profit corporation is commercial, because the corporation is a fictitious entity created by law it is not an appropriate rights holder under the First Amendment. For these reasons the term commercial speech should be interpreted broadly to encompass all expression by for-profit corporations. Commercial expression is enormously influential and so when it is false it can be enormously costly. Government may be the only institution powerful enough to preserve the rights and powers of individual citizens against increasingly powerful private interests.

commercial expression

Abstract:
In this essay submitted to the Loyola Los Angeles Law Review in honor of Professor Steve Shiffrin, Professor Piety discusses the proposals for more First Amendment protection for commercial speech in light of one of the persistent problems in the commercial speech area: preventing fraud. Decades ago prominent economists initiated a deregulatory revolution in part premised on the argument that this sort of hands off approach was thought best in the marketplace of ideas, so why not the market itself? This argument from the outset dismissed too quickly the reality that in fact only a fairly limited area of speech received this heightened degree of protection. But in recent years many have taken the parallelism further and have argued that the heightened protection given to those limited areas of speech should also be extended to commercial speech. Extending the metaphor of the market, Professor Piety argues that there is sufficient evidence of market failure with respect to commercial speech to conclude that heightened protection is unwarranted.

Abstract:
Utilizing Dove's infamous "Onslaught" viral ad, this Article explores the ways in which commercial speech constructs images of and attitudes toward women that interfere with full equality for women. Advertising and marketing contribute to creating a social reality in which it is taken for granted that women must spend a great deal of time on appearance and that appearance is of critical importance to life success. As is typical for much advertising, it does this by stimulating anxiety. Such anxiety contributes to low self-esteem, lowered ambitions and stereotype threat reactions, as well as to biased reactions on the part of others. Harms such as these are often justified on the basis of the right of the speaker to participate in public debate or in the public's right to receive advertising "information." The Dove ad itself, however, illustrates the problem in locating a "speaker" for commercial speech and raises questions about the nature of the "information" provided by advertising. Because commercial speech lacks an author with moral interests and because it only has informational value when it is true, this Article presents an argument that women's interest in equality and freedom from harm should outweigh the commercial interests of the speakers, at least to the extent that commercial speech be denied any First Amendment protection beyond that already extended to truthful speech.

Abstract:
The commercial speech doctrine allows the government to regulate commercial speech so as to prevent advertising that is false or deceptive while forbidding suppression of truthful commercial information that is based on nothing more than misplaced paternalism. However, this limitation is largely illusory in the realm of traditional advertising because the processes by which advertisers convey their messages employs means such as pictures, symbols, and music, making it virtually impossible to try to test such advertising for its truth. Objections to commercial advertising or calls for stricter regulation often invoke the response that there is no harm in advertising and any regulation of it would be an imposition of elitist sensibilities, or furthermore, a slippery slope to totalitarianism. But we should not treat commercial advertising as largely harmless, argues Prof. Piety. Commercial advertising is a pervasive force which blankets our society and plays a noticeable hand in promoting harmful behavior or attitudes. Given its pervasiveness in the culture it is disturbing to note many parallels between the psychology of commercial appeals and that of addiction. Both appear to involve retreat to fantasy, escapism, a quick fix to problems, a numbing down or increased tolerance from overexposure, and the institution of a vicious cycle wherein consumption fails to really satisfy but sets up a dynamic into which satisfaction rests just out of reach with the next fix or the next purchase. Prof. Piety examines three areas in particular where values of equality or definitions of autonomy clash with First Amendment protection for advertising such as this: the advertising of addictive substances, advertising directed at children, and advertising that undermines goals respecting equality for women and suggest that the doctrine may need to be revisited in light of these issues.

Abstract:
This article presents the argument that all marketing communications be treated as "commercial speech" for purposes of the commercial speech doctrine, including public relations. Integrated marketing communications treats such public relations speech as free advertising. As such it ought to be subject to the same sort of scrutiny for truth or falsity or the potential to be misleading as traditional advertising.

first amendment, commercial speech, public relations, stealth marketing

Abstract:
A discussion of the 2003 Nike v. Kasky case and why, on balance, a commitment to the preservation of freedom of speech favored Kasky rather than Nike.

first amendment, commercial speech, nike