The First Amendment and Commercial Speech

Abstract

This Article examines the constitutionality of regulating commercial speech. Keeping in mind traditional First Amendment values, this Article squares the regulation of commercial speech with the justifications that accompany the regulation of noncommercial speech. After providing a definition of commercial speech, this Article inspects the First Amendment values that have been applied to commercial speech. This Article explains why commercial speech is different from other types of speech and further explains how these differences have led to inconsistent “autonomy” concerns regarding the First Amendment coverage of commercial speech. This Article argues that autonomy concerns of speakers and listeners are not enough alone to justify First Amendment protection for commercial speech, but there are certain occasions when commercial speech may warrant First Amendment protection. The context of commercial speech is paramount to the First Amendment analysis. This Article explains how the context of commercial speech affects this analysis, specifically focusing on expression engaging matters of self-government or public policy and expression engaging in other matters of societal import.