March 1, 2011

Advertising, Commercial Speech, and First Amendment Parity

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In recent years, federal policymakers, state legislators, and state Attorneys General have all shown renewed interest in regulating commercial advertising and marketing.   Several new regulatory initiatives are being proposed, or are already underway, that could severely curtail or restrict commercial speech on a variety of platforms.  The affected platforms range from traditional media (newspapers, TV and radio broadcasters, etc.) to the newest media outlets (the Internet, online ad networks, social networks, video games, mobile devices, and interactive television). 

The consequences of these stepped-up regulatory efforts could be profound and adversely impact consumers both directly and indirectly.  The role commercial speech plays in a free market economy is often misunderstood or taken for granted.  This essay briefly outlines the reasons why new restrictions on advertising and marketing would diminish consumer welfare. Moreover, it underscores and endorses the Supreme Court’s recent jurisprudence in this area, which has bolstered the First Amendment status of commercial speech, although those decisions have fallen short of according commercial speech the same constitutional protections as other types of speech and expression. This distinction is less sensible and enforceable in an age of media convergence and user-generated content; the boundaries between commercial and non-commercial speech are simply not as bright as they once were. Thus, there are both principled and practical rationales for ending this regulatory asymmetry and according commercial speech First Amendment protections on par with all other forms of speech and expression.

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