Download this Paper Open PDF in Browser

Robert Bork & Commercial Speech

25 Pages Posted: 4 Mar 2014  

Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Date Written: March 1, 2014

Abstract

This symposium essay examines the evolution of Judge Robert Bork’s views on whether commercial speech is constitutionally protected. In a famous 1971 article, Bork argued that only “explicitly political” speech warranted constitutional protection. This position excluded commercial speech from protected speech, along with many other categories of indisputably valuable speech. Judge Bork moderated this position over time, acknowledging that some non-political speech should be protected, even if only due to the difficulty in distinguishing it from core political speech. He also came to embrace robust protection for advertising and other forms of commercial speech, though he did not explain why. This essay explores potential explanations for the change in Judge Bork’s views, including the possibility that the line between commercial and political speech is often unclear, particularly if one does not adopt a state-centered conception of political speech.

Keywords: Robert Bork, First Amendment, Freedom of Speech, Commercial Speech

JEL Classification: 19

Suggested Citation

Adler, Jonathan H., Robert Bork & Commercial Speech (March 1, 2014). Journal of Law, Economics and Policy, Forthcoming; Case Legal Studies Research Paper No. 2014-06. Available at SSRN: https://ssrn.com/abstract=2403292

Jonathan H. Adler (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-2535 (Phone)
216-368-2086 (Fax)

HOME PAGE: http://www.jhadler.net

PERC - Property and Environment Research Center

2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

Paper statistics

Downloads
33
Abstract Views
339