Cass Sunstein and the Originalist Case for Commercial Speech Protection

In my last post, I criticized Cass Sunstein’s originalist case against the colorblind constitution.  Here I discuss Sunstein’s criticism of Scalia and Thomas for their views on commercial speech.  Sunstein writes:

Conservatives tend to believe the First Amendment requires courts to invalidate many restrictions on commercial advertising. But until 1976, the Supreme Court didn’t believe that the First Amendment protected commercial advertising at all. It would take a lot of work to establish that the constitutional protection that some would give to commercial advertising can be traced to the original understanding in 1791.

This is quick, too quick.  To begin with, the First Amendment did not have much action until the 20th Century (in part because it was not applied against the states and in part because it was interpreted narrowly).  Once it was applied, we were in a world dominated by progressive and New Deal ideas.  Thus, it would be no surprise that these eras sought to draw a significant distinction between political and commercial speech.  (And it is not that surprising that Justice Scalia is less receptive to commercial speech protection than Justice Thomas is, since Scalia seems more influenced by the neo-progressive view that was dominant when he went to law school.)

But this world view – which treated commerce as part of a lower realm where constitutional rights did not reside – was not part of the world view either of the Framers of the original Constitution or of the 14th Amendment (which might be relevant to the incorporated First Amendment).  Thus, there is little reason to believe that these Framers were not intending to protect commercial speech.  On the contrary, they prized property and commercial freedom.  And some of the classic freedom of the press incidents involved advertisements, as with a famous Benjamin Franklin advertisement.  Thus, one might start with a presumption that a term like “freedom of speech” covered all speech, not just political speech.

In addition, if one looks at the laws at the time, they were generally consistent with the protections for commercial speech that the Supreme Court has drawn.  The law prohibited fraud but the extensive regulation of advertising and commercial speech that the 20th Century brought did not exist either in 1791 and 1868.  This also suggests that commercial speech might be protected.

In making these arguments, I have been relying on the work of John McGinnis and Dan Troy.  Their work has convinced me that there is a reasonable case to be made for covering commercial speech.  Much more work is needed to nail down the case, but at this point I think the arguments for commercial speech protection outweigh those against it.

Not only do we need more originalist work on commercial speech, but also on freedom of speech generally.  While Eugene Volokh has done some excellent work, one scholar is not enough.  My sense from reviewing the historical materials is that the original meaning of free speech is wide but shallow.  That is, many areas are protected, such as commercial speech and symbolic speech, but they are not protected as strongly as many moderns seems to believe.  My sense is that New York Times v. Sullivan provides a stronger protection for speech than the original meaning allows.

Next time, I will discuss Sunstein’s attack on regulatory takings.