Market Failure in the Marketplace of Ideas: Commercial Speech and the Problem that Won't Go Away

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.

Number of Pages in PDF File: 47

Accepted Paper Series