A Note on Commercial Speech in the Era of Late Capitalism

It is not unreasonable to assume that the free speech clauses of the First Amendment are primarily concerned with political speech. As many have argued, free speech regarding politically relevant matters can be considered a prerequisite of a functioning democracy. The boundaries of political speech are less clear, however, and they have tended to expand over time as it was recognized that republican politics required more varied and wide-ranging speech than was previously thought. Although the contours of the appropriately protected speech were being established in Britain before the American Revolution, the Sedition Act controversy demonstrated that constitutionally protected speech would have to be conceptualized more broadly than was once the case in order to have a viable system of competitive elections.¹ Harsh and unruly criticism of government officials and political candidates would have to be incorporated into the free speech regime. The antebellum debate over slavery similarly made clear that free-ranging debate over social institutions and practices that were potentially subject to government action and political inquiry would likewise need to be protected as political.² The jurisprudential debates over seditious speech in the early twentieth century likewise indicated the scope of political speech that would need to be protected if the Declaration's claim to a right to alter the form of government was to be taken seriously.³ The citizenry not only needed to hear whether the Adams administration was departing from republican principles, but also whether socialism was an attractive alternative to republican capitalism.

Of course, there might well be social value in other types of speech, but that may not be reason enough to protect them under the free speech clauses. Free speech relating to religion, perhaps the origin of free speech rights, may be understood to be independently protected under the religion clauses of the First Amendment.⁴ We might well believe that other forms of speech are adequately protected by the structural features of American democracy. We might worry that a government empowered with the authority to regulate speech might use it to silence political dissent or criticism of the government itself or might act on behalf of religious majorities to similarly silence religious dissent or criticism. We might consider the value of artistic, scientific or commercial speech less fundamental, however, such that it is properly subject to a regulatory calculation, or we might think that the political salience of such speech is such that it is less prone to the temptations of abuse that beset political and religious speech and thus less in need of special constitutional and judicial protection.⁵ Economic activity or commercial speech would receive heightened protection only to the extent that it fed useful information into the political sphere. Thus, "peaceful" labor picketing may be constitutionally protected to the extent that, "[f]ree discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society. The issues raised by regulations, such as are challenged here, infringing upon the right of employees effectively to inform the public of the facts of a labor dispute are part of this larger problem."⁶ On the other hand, since the point is to protect speech/activity relevant to policymaking rather than freedom of action as such or activity relevant to the economic dispute or competition, other forms of labor action are left outside constitutional protections.⁷

The metaphor of the marketplace of ideas fits this functionalist understanding of free speech. With its economic referent, it suggests a group of producers and consumers with exogenous preferences. The producers of ideas pump out speech in the hopes of winning market share, and the consumers gobble up those ideas that happen to match up with their preexisting preferences (the relevant preferences may not directly be for the idea itself but for something else that the idea might relate to – we have a preference for wealth and we are in the market for a good idea as to how to produce it). The success...