First Amendment Entitlements and Government Motives: A Reply to Professor Merrill

Professor Merrill makes a powerful argument for allowing tobacco advertising to be restricted or prohibited.1 He convincingly demonstrates that, on the most plausible assumptions, tobacco advertising inflicts substantial costs and does not confer benefits of a sufficient magnitude to offset those costs. To a large extent, this argument stands on its own and does not depend on the interesting framework that Merrill develops in the rest of his article and that I will discuss here. A severe disparity between costs and benefits has to give anyone pause; one need not be committed to an explicit cost-benefit approach in order to agree that we should hesitate to recognize a constitutional right to do something that inflicts such large net burdens on society. Many people believe, for example, that an approach focusing on monetizable costs and benefits does not fully capture the ways in which freedom of expression protects the autonomy of speakers or of potential consumers of speech.2 To be sure, such autonomy-based approaches might not be very useful when applied to tobacco advertising. It seems unlikely that advertisers have a significant autonomy interest in speaking; and as Professor Merrill suggests, the autonomy interests of teenagers-the primary targets of tobacco advertising-might well be best protected by restricting advertising. But even assuming that important autonomy interests are significantly affected by a restriction on tobacco advertising, why shouldn't those interests be overridden if the net harm inflicted by tobacco advertising is as great as Merrill suggests?3 At the same time, the kind of cost-benefit analysis that Professor Merrill uses does have a number of important virtues. Following others who have used a similar approach, Merrill suggests a plausible way of differentiating commercial speech from other kinds of speech. This distinction is notoriously hard to make in abstract terms, although few would deny that there is some "common sense" basis for it.4 Merrill's suggestion is that commercial speech is different because-unlike, for example, speech on political matters, or artistic expression-commercial speech is unlikely to have significant external benefits.5 This is not a flawless way of drawing the line between commercial and noncommercial expression, but it seems to be at least as good a basis for a distinction as anyone has come up with so far. Perhaps the most intriguing idea in Professor Merrill's essay, however, is his suggestion that the framework developed by Guido Calabresi and Douglas Melamed might be applied to constitutional rights6-and particularly his novel and very interesting proposal that the right to engage in commercial advertising might, in certain cases, properly be condemned by the government and taken in exchange for just compensation. This condemnation proposal emphasizes the point that commercial speech more closely resembles economic activity of the kind the government is traditionally allowed to regulate, rather than speech that is generally immune from regulation.7 The use of the Calabresi and Melamed approach to free speech, like Professor Merrill's specific argument about tobacco advertising, can be useful even if one is not inclined to adopt an explicit cost-benefit framework. The Calabresi and Melamed categories might be used by someone who thinks that freedom of expression primarily protects autonomy interests, or even by someone who believes that the primary purpose of free speech is to ensure the proper functioning of democratic government.8 For example, to the extent that speaker autonomy is thought to be the basis for freedom of expression, the idea that the right to speak should be protected by a property rule-freely alienable, but only at the option of the speaker-is likely to be appealing. If the speaker's autonomy is the core interest being protected, then the speaker's willingness to give up the right to speak should ordinarily be decisive. …