The Political Economy of Commercial Speech
University of San Francisco - School of Law
South Carolina Law Review (Symposium Issue), Vol. 58, p. 913, 2007
There exists much insightful commentary on the commercial speech doctrine. Some of it debates whether its underlying premises can be neatly theorized, or whether a pragmatic approach is more germane. Other scholarship considers the merits of particular applications: for example, whether specific portions of the securities or consumer protectionor food and drug laws pass constitutional muster. Even defining commercial speech has spawned its own small cottage industry.
This Article takes a different approach by discussing the political economy of commercial speech. It asks whether the recent push toward broader protections for commercial speech represents a very sophisticated attempt at putting forth a deregulatory agenda through constitutional rhetoric - a role similar to that the due process and contract clauses occupied nearly a century ago. To the extent that an overly expansive commercial speech doctrine is used to discredit agency regulation, it represents a brilliant attempt to sidestep the deference courts give regulators under Chevron.
The argument is structured in two parts. Part I suggests that two movements, the Chicago school and public choice, have given intellectual legitimacy to the push for expanded commercial speech protections. Unfortunately, however, this agenda is flawed along two major dimensions. First, it glibly conflates commercial speech with core political speech at the heart of the First Amendment. Second, it suffers from a host of facile and untenable assumptions about rational consumers, self-correcting markets, and good corporations versus bad governments. The agenda is to use the First Amendment to sidestep economic regulation, much like the Lochner era relied on Fourteenth Amendment due process claims.
Part II explores six curious anomalies that fuel the agenda described in Part I. These represent leaps of logic that are made seemingly without justification. Puzzles that, conveniently enough, benefit those who wish to grant ever-expansive rights to commercial speech. First, there is an inconsistent willingness to attack certain regulatory regimes, but not others. Second, corporations are simply assumed to have constitutional rights. Third, the rhetoric bizarrely shifts attention away from speakers toward listeners and information. Fourth, there is a permissive attitude toward mixing political with commercial speech, thereby sidestepping even the minimal requirement that commercial speech not be false or misleading. Fifth, there is an unwillingness to ask why a government that can regulate an underlying commercial transaction might not be able to regulate speech promoting that transaction. Finally, there is a strange desire to defer to courts as frontline arbiters of economic policy, thereby sidestepping Chevron deference.
Keywords: constitutional law, commercial speech, political economy
JEL Classification: P16
Date posted: March 2, 2007