The First Amendment and Commercial Speech

IntroductionBecause not all expression is included in the speech whose freedom the First Amendment prohibits Congress from abridging,1 the constitutionality of regulation of commercial speech turns, in fair part, on whether and why that speech is determined to be "covered" by the First Amendment-and if covered, how extensively or vigorously the freedom to speak is, or should be, "protected" against abridgement (compared with other varieties of covered speech) .2Commercial speech differs from speech specially protected under the First Amendment because commercial speech is less likely to be confronted by counter or corrective speech, or "more speech," which is an essential predicate for the protection of speech by the First Amendment. Assessing the constitutionality of regulation of commercial speech in light of underlying First Amendment values requires a definition of commercial speech.I. Framing the QuestionA. Defining Commerdal SpeechThe uncertain content of the commercial speech that is subject to government regulation, and the lack of clarity of U.S. Supreme Court opinions addressing the restraints imposed by the First Amendment on such regulation, has generated considerable discussion of the unavoidable ambiguity of the concept of commercial speech3 and some incoin herence in the Court's efforts at delineation of it. In the bulk of the Court's commercial speech cases, the regulation at issue seeks to avert harmful consequences to consumers from heeding communications made as part of an effort of a for-profit enterprise to induce purchase of specified commodities or services.4Grounded in that effort, a workable concept of commercial speech may fairly be said to entail two sorts of expression. One is expression that may be called "narrow" commercial speech. It consists of a communication that (1) proposes or offers explicidy or "implicidy"5 a sale or exchange transaction in a specified commodity or service, and is made by the proposer (or its agents) as part of its business of profiting from such transactions,6 and (2) does no more than describe the terms of such proposal or simply identify the putative seller's products.7 Notwithstanding the Court's contrary view,8 it is hard to find any plausible links between narrow commercial speech and expression that relates to matters "of import to significant issues of the day"9-at least linkage that is strong enough to support First Amendment protection for commercial speech.10Much, if not the bulk of, commercial speech, however, is "enriched," in that it does more than simply articulate the terms of the proposed transaction or describe the identified products or services. It contains additional expression, such as portrayals of the benefits and joys (personal or social) of owning or using the offered product or the pleasures of the attractive lifestyle it offers. Or it may promote the seller's products or services by highlighting their health and safety benefits, or ego-enhancing features, or public policy benefits for society.11 In short, it may contain expression that might be, or would be, covered by the First Amendment if it were freestanding. Attachment to an effort to sell an identified product or service is a necessary,12 but may not be a sufficient, condition for the expression to be commercial speech.13 The absence of a selling effort (explicit or implicit14) pre- eludes the communication from being commercial speech, but need not imply that the speech is otherwise covered or protected by the First Amendment.15 The presence of such an effort may convert otherwise fully protected expression-whether of fact, opinion, or ruminationinto commercial speech.16To be sure, virtually every public pronouncement by a seller of products or services that mentions or calls attention to those products or services can plausibly be portrayed as part of a sales effort that constitutes commercial speech,17 including efforts designed to enhance the image of the seller as a good citizen in the production or distribution of its products. …