Where the Consumer is the Commodity: The Difficulty with the Current Definition of Commercial Speech

44 Pages Posted: 11 Mar 2012 Last revised: 25 Sep 2013

Erin Bernstein

Independent

Theresa J. Lee

Yale Law School

Date Written: March 9, 2012

Abstract

The business model for many online companies — Facebook, Google, and Pinterest are prime examples — does not involve a direct economic transaction with users. Rather companies entice consumers to provide personal information in exchange for access to free services. Although consumers, privacy advocates, scholars, and these companies may assume that the government can regulate the companies' advertising and compel the posting of a privacy policy, the current test for commercial speech only encompasses speech that proposes a direct economic transaction. This Article examines alternate formulations of a commercial speech test that would cover the speech of companies favoring indirect business models that "sell against" the personal information of those availing themselves of free products.

Keywords: commercial speech, First Amendment, internet, privacy, Facebook, Google

Suggested Citation

Bernstein, Erin and Lee, Theresa J., Where the Consumer is the Commodity: The Difficulty with the Current Definition of Commercial Speech (March 9, 2012). 2013 MICH. ST. L. REV. 39. Available at SSRN: https://ssrn.com/abstract=2019270 or http://dx.doi.org/10.2139/ssrn.2019270

Theresa J. Lee

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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