Brandishing the First Amendment: Commercial Expression in America

Introduction: The Problem of Commercial Expression

introduction The Problem of Commercial Expression [P]rotection of commercial speech, particularly in robust form, is a recent occurrence. —Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint In 2009 Advertising Age reported that advertising and marketing were taking a “beating” in Washington.1 Several legislative proposals that would either directly or indirectly threaten to put more limits on the industry were receiving serious attention in Washington. Marketing folk opposed these proposals because they wanted “an unencumbered advertising and marketing environment .”2 Despite this new interest in regulation, the marketing environment is likely to remain relatively unencumbered for some time to come because efforts to restrain it are likely to encounter a formidable obstacle in the courts—the First Amendment. Although the situation is little known outside of the litigation circles involved, industry has been engaged for the last forty years or so in strategic litigation raising First Amendment challenges to governmental attempts to regulate commercial speech. These efforts have met with some success because, although they did not always result in a win in a particular case, cumulatively they have successfully changed judicial and public attitudes toward governmental regulation of commercial speech. Although for the ‹rst 200 years or so of this country’s existence most observers took it for granted that the government could regulate commercial speech as a function of its power to regulate commerce, by the mid-1970s this was no longer obviously the case. Regulation had gotten a bad name, and the marketplace was increasingly trusted to take care of many problems formerly thought to be the preserve of government. After the events of the last couple of decades however, regulation is starting to look good again. We have seen the spectacular failure of some of the world’s largest companies (e.g., Enron and AIG); the discovery of widespread corruption and incompetence of private contractors like Halliburton and Blackwater in the conduct of two wars; repeated shocks in the ‹nancial and credit markets; the mining accidents and the explosion of the Deepwater Horizon oil drilling rig in which inadequate regulatory oversight is alleged to have played a role; and a seemingly endless stream of news about recalled cars, tainted food, children’s toys contaminated with lead, poisoned dog food, and heavily advertised drugs removed from the market after widespread use revealed more dangers than their manufacturers disclosed. All these events have prompted calls for regulatory reform. However, the foundation laid by industry through strategic litigation during the period of relative regulatory inertia may make it very dif‹cult for government to reassert control. This litigation around commercial speech and the rights of businesses to engage in protected expression have made an argument seem natural and inevitable that only ‹fty years or so ago would have seem absurd —that commercial speech is entitled to full First Amendment protection. Beginning in 1976 and then accelerating into the early part of the new century , courts have been increasingly willing to entertain arguments that governmental attempts to regulate commercial speech violate the First Amendment . This is a disturbing development, because if the government cannot regulate commercial speech, it cannot regulate commerce—period.3 Marketing is big business, perhaps one of the biggest businesses in the United States. According to one estimate, it generates an annual $6 trillion in economic activity.4 But all this economic activity may come at a steep price. Marketing has been implicated in virtually every major news story of the past few years—spiraling health care costs, spectacular corporate meltdowns like Enron and AIG, ‹nancial reform, the mortgage crisis, tainted foods, environmental safety, global warming, increasing childhood obesity, and many others . Sometimes it has played a central role in creating or exacerbating a crisis , sometimes only a supporting one. But it is always a part of the problem. Although marketing practices are regulated in a number of ways, enforce2 / brandishing the first amendment ment has often been uneven. It is becoming obvious that plugging gaps and greater oversight are long overdue. The realization that more regulation is in order is at odds with the increased willingness of the courts to grant commercial speech (and commercial speakers) greater First Amendment protection from regulation. That judicial willingness is the product of several decades during which industry has engaged in strategic litigation, brandishing the First Amendment as a means of fending off regulatory efforts of all types—for cigarette labels, the marketing of junk food...