Making Sense of Hybrid Speech: A New Model for Commercial Speech and Expressive Conduct
22 Pages Posted: 15 Jul 2009
Date Written: 2005
Under First Amendment doctrine, many types of speech receive the most stringent level of constitutional protection, whereas other types receive no protection at all. For example, some categories of speech, such as political speech, are viewed as being at the core of the First Amendment. Restrictions on these forms of speech receive strict scrutiny and consequently are rarely upheld. Other categories of speech, such as obscenity, receive no protection under the First Amendment, and restrictions on such speech are subject only to rational basis review under the due process clause.
But not all speech fits neatly within this dichotomy. Commercial speech and expressive conduct are prominent categories of speech that can receive an intermediate level of First Amendment protection. In its 1968 decision in United States v. O’Brien, the Supreme Court held that incidental restraints on expressive conduct are evaluated under a four-factor intermediate scrutiny test. Within a decade, the Court held, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., that restrictions on commercial speech are also subject to intermediate scrutiny. Four years later, in Central Hudson Gas & Electric Corp. v. Public Service Commission,7 the Court formalized its analysis of commercial speech by adopting a four-factor test that closely parallels the one created in O’Brien.
Recognizing these similarities, this Note proposes a new framework for understanding commercial speech and expressive conduct by examining their different purposes and mechanisms of expression. Part I describes how commercial speech and expressive conduct are different forms of hybrid speech - each has a different mixture of protected elements that merit a heightened level of First Amendment scrutiny and of regulable elements that deserve only rational basis review. More specifically, this Part asserts that while expressive conduct generally has a protected purpose but a regulable method of expression, commercial speech typically has a regulable purpose but a protected method of expression.
Part II explores how the hybrid nature of commercial speech and expressive conduct affected the development of those doctrines. This Part explains how the Court’s general expansion of the First Amendment’s scope and its increased deference to government regulation during the twentieth century came into tension in the context of hybrid speech. Part II suggests that the Court resolved this tension by adopting intermediate scrutiny for restrictions on commercial speech and incidental restraints on expressive conduct.
Part III further develops the framework for analyzing commercial speech and expressive conduct by exploring their similarities with non-speech sales activities, which are defined here as actions designed to increase consumer demand that do not operate linguistically or use a conventional form of media to communicate. Focusing on the exterior designs of products as a prominent example of nonspeech sales activities, Part III demonstrates that such designs share a regulable purpose with commercial speech: to sell products by making them more attractive to consumers. This Part then illustrates how exterior product designs also share a regulable method of operation with expressive conduct, in that neither form of expression uses spoken or written words. Finally, this Part explores why product designs do not receive First Amendment protection and how this distinction clarifies the framework within which commercial speech and expressive conduct both fit.
Part IV examines how the type of governmental regulation at issue affects the level of review by exploring how the framework that this Note establishes helps to explain why content-based restrictions receive strict scrutiny in the expressive conduct context but not in the commercial speech context.
Finally, Part V of the Note examines why, although commercial speech and expressive conduct are both hybrid speech evaluated under similar four-part intermediate scrutiny tests, the actual levels of review applied to restrictions on these types of speech have diverged in recent years, with protection for commercial speech moving toward strict scrutiny and protection for expressive conduct drifting toward rational basis review. This Part suggests two possible reasons for this shift: the current Court’s affinity for bright-line rules rather than standards, and a perception that modern commercial speech contains more expressive content than in the past. This Part also describes problems that may result if either form of hybrid speech is removed from the realm of intermediate scrutiny.
Keywords: Hybrid speech, commercial speech, expressive conduct, intermediate scrutiny, symbolic speech, product design,
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