Robert Bork & Commercial Speech

25 Pages Posted: 4 Mar 2014

See all articles by Jonathan H. Adler

Jonathan H. Adler

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

Date Written: March 1, 2014


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:

Jonathan H. Adler (Contact Author)

Case Western Reserve University School of Law ( email )

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