Commoditized Speech, 'Bargain Fairness,' and the First Amendment

Abstract

This Article develops a theory of the appropriate role of the First Amendment in governing the regulation of commoditized speech (that is, speech people buy and sell). Courts should apply a “bargain fairness” model when reviewing such regulations: Speech regulations that merely enhance the bargaining power of one of the parties to a transaction — by ameliorating inequalities in setting the terms of the bargain — should be upheld, while regulations that have other purposes and effects should be struck down.

This Article shows that this simple theory tracks the Supreme Court’s precedents remarkably well. It is also judicially manageable, places minimal burdens on valuable First Amendment speech, and effectively tracks widespread intuitions about the appropriate boundaries between permissible and impermissible censorship.