The Constitutional Status of Commercial Speech

Abstract

Commercial speech doctrine is presently controversial and confused. In this Lecture, Professor Robert Post offers an hypothesis about why the U.S. Supreme Court has extended First Amendment protection to commercial speech, and he then uses this hypothesis to elucidate the disputes that presently engulf the doctrine. Post argues that commercial speech is protected because of its informational function. This contrasts sharply with public discourse, which is protected to ensure forms of participation necessary to sustain democratic legitimacy. The boundaries that separate commercial speech from public discourse reflect sociological judgments about whether particular forms of communication are valued merely as information, or instead as forms of communicative action that embody democratic participation. Post explores how the Court makes these judgments. The distinction between the constitutional function of commercial speech and that of public discourse explains why the state can compel disclosures, impose overbroad regulations, and establish prior restraints within the domain of commercial speech, but not within the domain of public discourse. Post also analyzes in detail the Central Hudson test, which sets forth the standards by which the Court currently decides whether regulation of commercial speech is constitutionally justified. The test is abstract and unhelpful, because it does not reflect any particular account of the constitutional function of commercial speech. Post assesses the ways in which the Central Hudson test can be rendered consistent with the constitutional justifications for protecting commercial speech, paying particular attention to current controversies regarding whether the state can suppress truthful commercial speech in order to modify behavior.