Cato Institute Policy Analysis No.

161:
Contrived Distinctions: The Doctrine of Commercial
Speech in First Amendment Jurisprudence
September 23, 1991

Jonathan W. Emord

Jonathan W. Emord is the senior litigation counsel at the Institute for Justice, Washington, D.C.; a senior research
fellow at the Pacific Research Institute, San Francisco, California; and the author of Freedom, Technology, and the
First Amendment, (Pacific Research Institute, 1991).

Executive Summary

There exists a tension in the law between speech rights and property rights. The former are given high constitutional
protection, but the latter are afforded little, if any, protection. As Bernard H. Siegan explains in his seminal work,
Economic Liberties and the Constitution, the law has shown little regard for property rights since 1937.[1] Since that
time the Supreme Court has abdicated much of its authority to protect property rights and has condoned the expansion
of state power over private property.

It should therefore come as no surprise that the Court has disdain for speech related to economic liberties. Indeed, the
Court's commercial speech jurisprudence is a striking anomaly in First Amendment law, for with the exception of
obscenity and fighting words no other speech content is so disfavored by the Court. Despite its willingness to single
out business and economic communication for disfavored treatment, the Court has never articulated a principled reason
why discrimination against commercial speech content is consistent with freedom of speech.[2]

From 1942 until 1976 the Supreme Court denied speech it categorized as purely commercial any constitutional
protection.[3] In 1976 the Court changed direction by holding that the simple advertisement "I will sell you X
prescription drug at Y price" was protected by the First Amendment. The Court insisted, however, that there remained
"commonsense differences between speech that does 'no more than propose a commercial transaction' . . . and other
varieties."[4] Since 1976 the Court has abandoned its decision to afford commercial speech greater First Amendment
protection. It has elected to give such speech almost no protection and held, as it did in 1942, that the content of speech
that proposes a commercial transaction, even when intertwined with speech about noncommercial concerns, is
regulable.[5]

A close examination of the Supreme Court's commercial speech doctrine reveals that it is unprincipled and draws
within the regulatory reach of the state communication that under traditional First Amendment analysis would be
protected from the state. Moreover, close scrutiny reveals that the doctrine is exceedingly fickle. The Court has not
been able to define "commercial speech" unambiguously. Without a clear definition, the lower courts have been
inconsistent in their application of the law.

Commercial speech jurisprudence has been in this baleful state for almost 50 years. A new treatment of the problem is
long overdue. The Court should reconsider the matter in a serious and searching way and return to first principles to
render the law coherent.
If it examines first principles, the Court will find that its commercial speech doctrine is a contrived distinction that has
no sound basis in principle, law, or constitutional history. The Court will find that the integrity of the First Amendment
can be maintained only if the level of protection for commercial speech is raised to that afforded political speech.

The Incoherence of the Commercial Speech Doctrine

The Court now condones state regulation of communication that occupies "a considerable fraction" of our lives--
communication about economic and business matters.[6] Although such regulation obstructs the free flow of economic
ideas and information essential to the survival of our free enterprise economy, not once has the Court defined
"commercial speech" with exactitude, let alone with a degree of precision that would enable the lower federal courts to
decide cases consistently and predictably.[7]

The state and federal governments have exploited the resulting doctrinal ambiguity. They have extended economic
regulation to cover the entire field of advertising and commerce. In so doing, they have provoked a great number of
First Amendment challenges and have caused commercial speech precedent to experience luxuriant growth,
developing within the body of the First Amendment like a parasite and sapping the amendment of its vitality. Scholars
concerned with those developments have filled the academic literature with their complaints. They have faulted the
Court for not adequately defining commercial speech and for creating a precedential quagmire.[8]

The Absence of Definitional Clarity

Over the years the Court has moved from one obscure definition of "commercial speech" to another, never adhering to
a single definition for long. Before Virginia State Board of Pharmacy v. Virginia Citizens Council, Inc., the Court
found speech in the form of "purely commercial advertising" not entitled to First Amendment protection.[9] At times,
it seemingly focused on the intentions of the speaker. Believing such intentions to concern the promotion of a sale, the
Court held the speech in issue unworthy of First Amendment protection.[10] At other times, the Court viewed the
presence or absence of a profit motive as irrelevant, explaining that it would hold speech that did "no more than
propose a commercial transaction" to be undeserving of protection.[11]

In Virginia State Board of Pharmacy, the Court abruptly changed course. It finally admitted that commercial speech
deserved First Amendment protection, reasoning that an individual's interest in commercial information "may be as
keen, if not keener by far, than his interest in the day's most urgent political debate." But the Court failed to articulate
a full justification for affording commercial speech protection. As a result, in subsequent years, the justices have had
little difficulty in abandoning Virginia State Board of Pharmacy and reverting to a lower level of scrutiny for
commercial speech. The Court has adopted an ad hoc, content-based approach to deciding such cases, which has
engendered as much confusion in the years since Virginia State Board of Pharmacy as prevailed in the years before it.

In Central Hudson Gas & Electric Corp. v. Public Service Commission, the Court defined its understanding of
"commercial speech" in two ways: as "expression related solely to the economic interests of the speaker" and as
"speech proposing a commercial transaction."[12] In Bolger v. Youngs Drug Product Corp., the Court held that speech
could not be considered commercial merely because it came in the form of an advertisement, referred to a brand name,
or was a by-product of a profit motive; rather, the Court held that the simultaneous occurrence of all three of those
factors defined the existence of such speech.[13] In Posadas de Puerto Rico Associates v. Tourism Co., without regard
to Bolger, the Court returned to an older definition of "commercial speech," stating that "pure commercial speech" was
that "which does 'no more than propose a commercial transaction.'"[14] In Board of Trustees of the State University of
New York v. Fox, confronted with commercial activity that involved not only the proposal of a sale but also home
economics education (and, thus, something more than a mere proposal of a commercial transaction), the Court subtly
eliminated, without explanation, the "no more than" qualifier to its "propose a commercial transaction" test, holding
that "[t]here is no doubt that the AFS 'Tupperware' parties the students seek to hold 'propose a commercial transaction'
. . . which is the test for identifying commercial speech."[15] The Court's inability to find a single workable definition
has rendered the law incoherent.

Whether the Court bases its definition of "commercial speech" on the presence of a profit motive, the presence of a
proposal to engage in a commercial transaction, the presence of speech relating to the economic interests of the
speaker, the presence of commercial advertising, or some other equally vague criterion, the result is always the same:
the Court's "definitions" make it quite impossible to determine in the vast majority of cases with a reasonable degree of
certainty whether the speech in issue is commercial or noncommercial and, therefore, protected or largely unprotected.
The result is that the Court has in place no standard capable of preventing an enormous amount of speech
indispensable to the exchange of ideas and information from being swept within the censorial power of the state. A
few examples will suffice to demonstrate the ambiguity.

When a representative of a private university, in a speech to a class of high school seniors, touts the academic and
athletic curricula of the university in an effort to offset declining enrollment and thereby fill the university's coffers, is
that speech commercial or noncommercial? The speech is profit motivated. It proposes a commercial transaction
(enrollment and the attendant payment of tuition and fees). It concerns the economic interests of the university. It is a
commercial announcement. However, it also disseminates academic information about ways to better youths'
educational and physical condition. Under the Court's highly malleable definitions, the speech is either commercial or
noncommercial depending on the interpreter.

When in a commercial announcement the president of an American automobile company urges people to "buy
American," argues that by purchasing foreign automobiles Americans are putting other Americans out of work, and
states that buying his company's cars is a patriotic act, is the president's speech commercial or noncommercial? The
speech is profit motivated. It proposes a commercial transaction. It directly concerns the economic interests of the
speaker, and it is a commercial announcement. However, it also touches on matters of pressing political concern--
consumer choice, protectionism, and free trade. Under the Court's many definitions of commercial speech, the
announcement is either commercial or noncommercial depending on the interpreter.

When a paper products company advertises that it plants thousands of trees each year across the United States and
preserves the environment for several species of migratory birds and then ends the advertisement with the company's
logo, is the advertisement commercial or noncommercial speech? The speech is profit motivated; it is image
advertising designed to counter public information that may diminish the saleability of the company's products. The
speech indirectly proposes a commercial transaction, for by it the company seeks respect and patronage. The speech
directly concerns the economic interests of the speaker, for it is designed to promote positive brand-name identification
in order to encourage purchases. The advertisement is, of course, a commercial announcement. However, it also
addresses a matter of pressing political concern--the extent to which the environment must be protected to preserve
animal habitats. Under the Court's many definitions of commercial speech, that announcement, like the others, is either
commercial or noncommercial depending on the interpreter.

The definitional problem arises because almost all persuasive speech has direct or indirect economic consequences. We
all spend the vast majority of our time engaged in some form of remunerative labor; hence, almost all speech
encourages changes in behavior that produce economic consequences. In those substantive respects, the speech of the
teacher, the politician, and the brush salesman are indistinguishable. The teacher seeks to gain the trust of students and
to sell ideas in an effort to bring about changes in the material world. If students are persuaded, they may alter their
thinking and conduct in ways that have economic consequences. The politician sells himself in an effort to acquire
power, prestige, and a career in politics; he also sells reform proposals in an effort to economically benefit a
constituent group on which he depends for votes. Those who are persuaded by the politician's speech will vote for him,
make financial contributions to his campaign, and, if possible, empower him to bring about changes in the law that will
have economic consequences for all the citizens he represents. The brush salesman is likewise in the business of self-
promotion and persuasion. He, like the teacher and the politician, seeks consumer confidence in order to sell his wares.
He desires to convince each consumer of the unique benefits of his product.

Each of those speakers conveys valuable information. Each may elect to propound a false or misleading message to
induce behavioral changes. Just as the brush salesman could misrepresent the qualities of his brushes, so too the
teacher could distort or selectively limit the information students receive, and the politician could make campaign
pledges that he never intends to honor. The consequence of the brush salesman's misrepresentations may be an act of
fraud. The one defrauded may file suit against the brush salesman on that ground. The teacher's manipulation may
mislead an ignorant or unwary person to adopt a world view or a mode of behavior that has direct, immediate, and
longterm economic repercussions for that individual. The one misled will not have legal recourse against the teacher.
The consequence of the politician's lies may be an election victory followed by an act of betrayal, whereby the
politician becomes instrumental in the passage of legislation deleterious to the economic interests of those who
mistakenly brought him to power. The ones misled can protest and vote against the politician in the next election.
Hence, all speech comes inextricably intertwined with commercial and noncommercial elements that belie any effort to
distinguish economically motivated or related speech from all other speech. Almost all persuasive speech contains
informational components that are related to economic matters.

The Presence of Conflicting Standards

As might be expected, the Court's inability to settle on a coherent definition of "commercial speech" is accompanied
by an inability to settle on a proper level of scrutiny to apply to commercial speech regulation. In the Court's 1975
Bigelow v. Virginia decision,[16] it applied the lowest degree of scrutiny, rational basis review, to the commercial
speech before it. In its 1976 Virginia State Board of Pharmacy decision, the Court did not decide the important
question of what standard of scrutiny to apply and failed to match the strong appreciation it professed for the First
Amendment value of a commercial message with an equally strong strict scrutiny analysis of commercial speech
regulation. In all of the commercial speech cases from 1976 until 1979, the Court failed to articulate a generally
applicable level of scrutiny to be used in judging the constitutionality of commercial speech regulation. In its 1980
decision in Central Hudson, the Supreme Court appeared to have settled upon a standard: a test that would afford
protection to commercial speech if it was lawful and not misleading and if the state either lacked a substantial interest
in regulating or failed to tailor its regulation in a manner that would both directly advance that interest and be no more
extensive than necessary to serve that interest. As previously noted, in its 1986 Posadas and 1989 Fox decisions, the
Court gutted the tailoring components of the Central Hudson test, effectively reducing it to a rational basis review.

The differing levels of scrutiny and the definitional confusion have led to inconsistent decisionmaking. The Court's
commercial speech precedent includes many cases that, although factually different in some respects, are substantively
common in many others and defy reasoned differentiation. For example, an advertisement containing commercial
speech on one side and political speech on another was found undeserving of First Amendment protection in Valentine
v. Chrestensen, but an advertisement combining potent political rhetoric with an appeal for cash was found entitled to
full First Amendment protection in New York Times Co. v. Sullivan. In Schneider v. New Jersey,[17] the Court
granted full First Amendment protection to several handbill distributors (including one who solicited patrons to attend
a lecture for a fee), whereas in Chrestensen, the Court would not grant the same protection to one who solicited
patrons for a tour of his submarine.

In Martin v. City of Struthers,[18] when confronted with a Jehovah's Witness engaged in colportage, the Court struck
down an ordinance that made it unlawful for a distributor of advertising materials to summon an occupant to the
entryway of a building by knocking at the door or ringing the bell, but in Breard v. Alexandria,[19] the Court upheld a
virtually identical ordinance that was applied to a magazine vendor who sold subscriptions door to door. Although
New York Times raised the prospect that all speech within the context of a newspaper might be free from government
regulation, in Pittsburgh Press Company v. Pittsburgh Commission on Human Relations, the Court held that a
municipal ordinance that proscribed the use of gender-based want ads was a commercial speech regulation that did not
violate the First Amendment. In Virginia State Board of Pharmacy, the Court struck down a law that proscribed
consumer drug advertising, and in Linmark Associates, Inc. v. Willingboro,[20] the Court struck down a law that
banned the placement of "For Sale" signs on residential property, but in Posadas the Court upheld a law that prohibited
the advertising of gambling to Puerto Ricans in their native land, despite the fact that gambling is legal in Puerto Rico.

Although in Ohralik v. Ohio State Bar Association[21] the Supreme Court upheld a state's punishment of a private law
practitioner "for soliciting clients in person," which is contrary to the legal code of ethics, in In re Primus[22] the
Court invalidated a state's punishment of a public law practitioner for "in-person solicitation" contrary to the legal
code of ethics. In Central Hudson, the Court deemed speech advocating the use of electricity "commercial," but in
Consolidated Edison Co. v. Public Service Commission,[23] the Court deemed speech advocating the use of nuclear
power "political."

In the absence of definitional clarity and without any clear governing standard, the members of the Court have
categorized speech, case by case, as either commercial or noncommercial, on the basis of nothing more than their own
gut feelings about the value of the speech in issue. They thereby eliminate the degree of predictability of result and
integrity of decision that is requisite to sound jurisprudence and the secure exercise of rights.

The Court's ad hoc approach is taken in an intellectual vacuum, without the benefit of any, let alone a sufficient degree
of, reflection by the justices on the principles that underlie the First Amendment and how those principles are served or
disserved by a lessening of constitutional protection for commercial speech. It is therefore not surprising that the
federal courts are in a quandary about how to decide a speech case that involves economic or business communication
but does not fit neatly into one of the factual molds of existing precedent.[24]

A Refutation of the Rationales for Diminished Constitutional Protection of Commercial Speech

Even assuming for the moment that a coherent definition of "commercial speech" can be found (a dubious assumption
given the history of the doctrine), the justifications for diminished constitutional protection of commercial speech do
not withstand scrutiny. They are derived from assumptions about "dangers" attendant to the free exchange of
commercial information that do not justify broad infringements on speech liberties. Those justifications do not explain
how the First Amendment can retain its meaning when government may limit or proscribe speech that occupies a
predominant place in the daily exchange of information and ideas.

Does the First Amendment Protect Only Political Speech?

Several commentators have argued that the First Amendment protects exclusively or primarily political speech.[25]
They believe that commercial speech has little, if any, relationship to political speech. Consequently, they conclude
that commercial speech deserves less First Amendment protection than political speech.

That view is derived from a false historical premise. In 1789 the primary reason James Madison introduced the First
Amendment in the first U.S. Congress was to satisfy the desires of the Anti-Federalists who opined that the
unamended Constitution of 1787 was unacceptable because it did not include express protections for the natural rights
of man, including those to free speech and press. The natural right to speech and press is not limited to speech of a
political nature. As Madison understood it, the First Amendment free speech and press clause constituted a positive
denial of government power over speech and press without regard to subject matter. With that understanding, he
introduced the Bill of Rights to the first Congress in an effort to placate the Anti-Federalists whom he knew to be
strong opponents of the unamended Constitution.[26] If one understands the amendment in the same sense Madison did
(as a denial of government power), it is entirely irrelevant whether free agents in the idea marketplace choose to
engage in speech conducive to self-government, self-fulfillment, or truth-seeking. Indeed, Americans may decline to
communicate, and that choice is provided the same degree of protection as the act of communicating.[27]

The Supreme Court's 1949 Valentine decision constituted an abrupt departure from the original view of the First
Amendment. It must be remembered that the press known to the Founders was replete with advertising matter, yet the
entire press, not merely the part devoted to political discourse, was placed beyond the reach of the state. In short, the
Founders did not create a legal distinction between commercial and political speech.[28]

Indeed, such a distinction would have seemed peculiar to people who knew colonial printers to be local entrepreneurs
whose presses could be hired for both political and commercial purposes. Colonial printers were not like modern city
editors. They regarded themselves more as artisans than as editors.[29] They were mechanics whose daily routine
included setting type and running presses. They were craftsmen who sold their services, printing "whatever they could
get their hands on."[30] They sometimes doubled as general store owners who might sell dry goods as well as native
pamphlets or books imported from England.[31] Colonial printers who published newspapers understood their medium
not only as one by which they could "insert [themselves] into the intimate daily dealings of [the] town" but also as "a
convenient place for [advertising] various wares."[32]

When the revolutionary generation decried "shutting up the presses," they were not condemning the suppression of
newspapers filled cover to cover with polemics. Rather, they were condemning the suppression of public prints that
contained advertising. The colonial press printed advertisements of personal wants, announcements of rewards for the
return of runaway slaves, and information on the scheduled sailing of ships.[33] Alexis de Tocqueville found
remarkable the extent to which American newspapers were vehicles for the dissemination of commercial information.
He observed:

In France, the space allotted to commercial advertisements is very limited, and the newsintelligence is not
considerable; but the essential part of the journal is the discussion of the politics of the day. In America,
three quarters of the enormous sheet are filled with advertisements, and the remainder is frequently
occupied by political intelligence or trivial anecdotes: it is only from time to time, that one finds a corner
devoted to passionate discussions, like those which the journalists of France every day give to their
readers.[34]

It was that highly commercial medium that the Constitution was meant to protect from state regulation, not merely the
part of it that addressed political matters. It is therefore inaccurate to suggest, even from the perspective of the
originalist, that the First Amendment does not protect both commercial and political speech from state regulation.

As discussed above, not only our constitutional history but also natural rights and other epistemological grounds
underlying the Constitution strongly support the view that individual liberty is unnecessarily sacrificed when
government obstructs the free flow of ideas and information on which people depend to maintain their livelihoods,
improve their labors, and better their material conditions.

Is Commercial Speech "More Verifiable" than Noncommercial Speech?

On occasion, the Court has reasoned that commercial speech is "more verifiable" than noncommercial speech and that
its verifiability should justify a reduction of First Amendment protection for the disfavored speech form. The
disseminator of commercial information is said to be in a better position to verify the truthfulness of commercial
speech than is the disseminator of political information the truthfulness of political speech.[35]

Even assuming that one form of speech is more verifiable than another, it is entirely unclear why (and the Court
provides no explanation) the degree of verifiability of speech should govern the extent of protection it is afforded
under the First Amendment. Hence, the relevance of the argument has not been established, even if we can be
convinced that the point is true.

However, we should not be convinced that the point is true, because it is a hasty generalization. Commercial and
noncommercial speech both come in some forms that are readily verifiable (e.g., "Brand X contains 16 ounces of
beans"; "I have never been convicted of a felony") and some forms that are not readily verifiable (e.g., "Coke adds
life"; "The Republican Party is the party of freedom and progress").

Finally, the Court posits "verifiability" as a distinguishing principle but does not apply that principle universally.
Political speech, even when demonstrably false, is fully protected. Thus, as a matter of principle, the Court does not
afford more verifiable speech less First Amendment protection. In sum, the verifiability rationale provides no sound
basis for denying commercial speech full First Amendment protection.

Is Commercial Speech "Hardier" than Noncommercial Speech?

The Court has at times reasoned that commercial speech is "hardier" than noncommercial speech. "Since advertising is
the sine qua non of commercial profits, there is little likelihood of its being chilled by proper regulation and foregone
entirely."[36] Hence, the Court presumes that the profit motive, unlike all other motivations in life, is a force that
makes those potentially subject to commercial speech regulation immune to the chilling effects of such regulation.

That rationale, like the verifiability rationale, has no empirical support. The Court's reasoning is entirely assumptive.
Moreover, the Court's reasoning is counterintuitive, for it assumes that one who is driven by a profit motive is less
likely to be deterred from speech proscribed by the state than one who is driven by, for example, ambition to attain
political office. At a minimum, as Daniel Farber has observed, "It is not at all clear that greed is more effective than
idealism in motivating people to risk government sanctions."[37]

Both the politician and the businessman will feel compelled to weigh the potential costs associated with speech that
arguably falls in a prohibited zone (e.g., the degree of certainty of prosecution and the amount of fines or terms of
imprisonment associated with a violation) against the potential benefits (e.g., the extent of support likely to be
engendered for a cause or the net profit likely to be generated after fines are taken into account). The typical
businessman and the typical politician will both probably be deterred from engaging in any speech activities that are
illegal because the costs associated with those speech forms and the stigma associated with violating the law will cause
the burden of speaking in a proscribed manner to exceed the potential benefits. Moreover, there will probably be other,
perfectly legal means of communicating a similar message, and speakers will most likely avail themselves of those
other means despite the marginally higher costs and the inconvenience associated with doing so.

Does a Power to Prohibit Commerce Include a Power to Ban Commercial Speech?

In 1979 Jackson and Jeffries argued that the "greater power" to prohibit commerce included within it a "lesser power"
to prohibit speech attendant to that commerce. "Given the authority to set prices in the first place," they wrote, "there is
nothing remarkable in the extension of legislative control to price advertising."[38] In Posadas, Justice Rehnquist
adopted that syllogism as constitutional law, reasoning that "the Puerto Rico Legislature surely could have prohibited
casino gambling by the residents of Puerto Rico altogether. In our view, the greater power to completely ban casino
gambling includes the lesser power to ban advertising of casino gambling . . . ."[39]

The greater power/lesser power premise is an example of the classic logical fallacy of division (the assumption that
what is true of the whole is also true of the part).[40] Moreover, the Court has inverted the logic of the syllogism. The
police power is not the "greater power."[41] The First Amendment is the greater power.[42] That amendment denies
the legislature authority to exercise its police power in a manner that would contravene the free speech and press rights
of the individual. The First Amendment expressly removes speech and press rights from the purview of majoritarian
control in order that lone dissenters may rest secure in the knowledge that they may proclaim their views against the
will of the majority without being punished. The fact that government may under current property law deny an
individual his property rights in order to serve the "public good" (an abuse of power that has been defined and
challenged by others)[43] does not mean that the government has an inherent power, derived from its ability to
confiscate property, to silence communication attendant to the use of that property. That view is a radical departure
from the minority--protecting premise of the First Amendment (and the Bill of Rights generally).[44]

Taking that view to its logical conclusion would permit the state to outlaw all protest against laws it has enacted,
because its greater power to regulate or prohibit a particular activity includes within it a lesser power to outlaw speech
attendant to that activity. Martin Redish has provided a more precise example: under the Court's greater power/lesser
power syllogism, the state could prohibit speech that advocated the overthrow of the U.S. government on grounds that
the state has a greater power to enact laws prohibiting the actual overthrow of the government; yet it appears to be
settled law that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe
advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such actions."[45]

Are Corporate Speakers Protected by the First Amendment?

Without empirical evidence for support, Professor C. Edwin Baker has argued that corporate commercial speech is
dictated by market forces.[46] His essential thesis is that individual speech is freely chosen (a by-product of one's quest
for "self-realization"), but corporate speech is not; rather, it is controlled by profit motivations. According to Baker,
individual speech deserves full First Amendment protection; corporate speech does not. Like the Court, he thinks little
of property rights and, so, finds little value in speech about the pursuit of profit. He fails to appreciate that liberty
encompasses the right to contract as well as the right to speak. He ignores the fact that free agents may agree among
themselves to contract for services in a way that limits their respective property rights, yet we protect such contracts
nonetheless because we recognize that they comport with the free will of the contracting parties. Likewise, speech from
parties who, through contract, have formed business organizations is free speech, representative of the desires of those
who have united by free will in pursuit of common property interests. Corporate officers and directors exercise their
free choice (within the scope of their authority) in selecting advertisements and other public announcements that they
believe will best inform the public about the qualities of company products. Hence, Baker errs when he presumes that
only individual speech is the product of free will.
Baker starts from another erroneous premise that others share with him: that the First Amendment is designed to afford
government the power to promote a single value of free speech and press. Baker calls that value "self-realization." His
result-oriented or consequentialist approach inverts the amendment's historical premise and arms the entity that the
amendment is designed to disarm, the government, with a power to mold a particular composite message that is said to
enhance the single value and thereby serve the public good. In that way, under Baker's construct, government may do
good by limiting the speech of those who are inspired to communicate by profit motivations, provided that it protects
individual self-expression. That methodology authorizes government to scrutinize the content of speech and
discriminate against any content it views as disfavored (in this case, profit-motivated speech).

The First Amendment is first and foremost a denial of government power. It is not a catalogue of favored and
disfavored forms of speech. It is by no means a vehicle for rendering a prejudice against profit-motivated speech the
supreme law of the land. It leaves to each of us the choice of what and how to communicate and whether to
communicate at all. There exists no lawful "preferred" mix of ideas, no required speech or disallowed speech. No free
speech and press model is mandated by the First Amendment. Rather, each model is descriptive of that government-
free environment mandated by the First Amendment.[47]

Is More Less?

On several occasions the Supreme Court has held that "[t]o require a parity of constitutional protection for commercial
and non-commercial speech . . . could invite dilution, simply by a leveling process, of the force of the Amendment's
guarantee with respect to the latter kind of speech."[48] In other words, more protection for commercial speech will
mean less protection for noncommercial speech. Implicit in that argument is a premise that conflicts with the Court's
fiction that commercial speech is distinct from political speech: namely, the notion that commercial speech and
noncommercial speech are interdependent, for how else could it be that enhanced protection for the one form would
necessarily affect the other? The underlying assumption of interdependence is, of course, not explicitly recognized by
the Court, for recognition would entail admitting that commercial speech and noncommercial speech are inextricably
intertwined--a point the Court has assiduously denied.[49]

The Court presumes that elevation of commercial speech protection will not merely raise protective barriers around
economic and business communication but will also lower protective barriers around political communication. That is
not necessarily so. The Court has exclusive authority to determine the outcome. Because it is within the Court's power
to determine the outcome, the argument makes little sense. The Court can, if it chooses, afford the same high degree of
protection to commercial and noncommercial speech, or it can deny some speech the protection that it affords other
speech. The latter is the course the Court currently prefers, yet it is that anomalous treatment, not uniform high
protection of speech, that causes a "dilution" in overall speech protection, for, as has been demonstrated, regulation of
speech the Court deems "commercial" unavoidably entails regulation of the noncommercial elements within that
speech.

Are There "Commonsense Differences" between Commercial and Noncommercial Speech?

On a number of occasions the Court has held that there are certain "commonsense differences" between commercial
and noncommercial speech that justify a subordinate position for the former.[50] The Court has never explained
precisely what the "commonsense differences" are; instead it has assumed that those differences are obvious. Precedent
reveals that the differences are obvious neither to the Court, nor to the federal courts, nor to the public.

It is incumbent on the Court to engage in reasoned decisionmaking. It cannot merely presume there to be distinctions
on which future decisions affecting speech liberties will turn; it must identify them and explain why they should be of
decisional significance.

The chaotic state of commercial speech precedent reveals that, in truth, there are no "commonsense differences." As a
consequence, the Court must reexamine its treatment of commercial speech in a serious and searching way. It should
return to first principles and find in those principles the proper philosophical underpinnings for speech rights. On that
foundation it may build a better understanding of the proper degree of protection to provide all speech rights, including
those to economic and business communication.
First Principles, Free Speech, and Fraud

In the American constitutional tradition, government is instituted among men to secure their pre-political rights. Pre-
political, or natural, rights are unalienable; they are birthrights that cannot be separated from us except by despotic
governments that the people, as sovereigns, have a right to alter or abolish. That is the philosophy that underlies the
Declaration of Independence and the Constitution. In the words of the Declaration:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.--
That to secure these Rights, Governments are instituted among Men, deriving their just powers from the
consent of the governed,--That whenever any Form of Government becomes destructive of these ends, it is
the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on
such principles and organizing its powers in such form, as to them shall seem most likely to effect their
Safety and Happiness.

The preeminent spokesman for the concept of limited government and natural rights, John Locke, and the leading
spokesman for the concept of separation of powers, Baron Charles de Secondat de Montesquieu, and other
Enlightenment sages had great influence on the Founders of our republic and their generation.[51]

In the hypothetical pre-political state of nature (i.e., "a State of perfect Freedom to order [one's] Actions, and dispose
of [one's] Possessions, and Person as [one thinks] fit, within the bounds of the Law of Nature, without asking leave, or
depending upon the Will of any other Man"),[52] we may conceive of man as a creature ruled only by the law of
nature (that law being "reason," which "reaches all Mankind, who will but consult it[; they] being all equal[53] and
independent . . .").[54] Of course, in the state of nature, only the will of one man stands against the will of another.
Freedom in the state of nature is "Liberty to be free from restraint and violence from others" and to "dispose, and
order, as [one likes] his Person, Actions, Possessions, and his whole Property" but not to do whatever he wants, "for
who could be free, when every other Man's Humour might domineer over him?"[55]

In that environment, it is inevitable that some will not live by the law of nature but will transgress that law by exerting
dominion over others, arbitrarily depriving them of life, liberty, or property. Consistent with the law of nature, each
person has a right to seek retribution against the perpetrator.[56]

Defending one's life, liberty, and property against the arbitrary will of others is an arduous task in nature, the proper
remedy for which is the creation of civil government, but such governments can be just as arbitrary and just as capable
of violating the natural, pre-political rights of man as are individuals who refuse to bind themselves by the law of
nature when in a state of nature.[57] Therefore, the only just government is that which arises from universal consent
and protects all natural rights equally.[58]

Man would not have an incentive to leave the state of nature unless he were assured that his natural rights to life,
liberty, and property would not be abrogated in civil society.[59] Therefore, at a minimum, the government must
assure its citizens that their natural rights to life, liberty, and property will be protected.[60] "The great and chief end
therefore, of Men uniting into Commonwealths, and putting themselves under Government," wrote Locke, "is the
Preservation of their Property," by which Locke meant lives, liberties, and estates.[61]

It is clear that in the state of nature man would have total freedom to communicate (as he would to engage in any other
act). However, he would be governed by the law of nature to the extent that he could not use speech as a vehicle to
deprive another of rights to life, liberty, or property. Hence, freedom of speech has a natural limit that denies the
individual a right to use speech to deprive another of property (in the Lockean sense of the word).

In adopting the First Amendment to the U.S. Constitution, the first Congress placed the natural right to free speech and
press beyond the reach of the state, that is, left it, as the Anti-Federalists demanded, in the private sphere. Yet as in the
state of nature, so too under our civil law, that freedom is not absolute. If one were defamed, under the civil laws, he
could sue for defamation. In accordance with due process under the Fourteenth Amendment, one who transgressed the
rights of another could be prosecuted for that transgression.
However, it is clear that commercial speech, as a subset of speech generally, holds no disfavored place in either the
pre-political world of Lockean philosophy or the constitutional world of the Framers. No principled basis exists for
excluding such speech from protection. The mere utterance of a commercial message does not cause one to deprive
another of rights. Indeed, the rights to choose the content of speech, whether commercial or noncommercial, and to
engage in exchange of ideas and information at will are defining characteristics of free speech in this schema. It is only
when such speech is used to defraud another that a problem arises.

Most false commercial messages carry no direct, imminent, or great harm and can be remedied through private
counterspeech. Others are attendant to crimes, and the apprehension of those who commit the crimes will solve the
problem. Still others are attendant to tortious acts for which there are civil remedies. And still others fall into the realm
of contract, a breach of which affords the wronged party a remedy in civil court.

Elevating commercial speech protection to the level of political speech protection will not cause crimes, torts, and
contract violations to go unremedied. It will merely remove government from the paternalistic business of policing
speech content and imposing on the innocent and the wrongdoers alike a speech orthodoxy. The state would be forced
to rely on the private institution of suits by those directly and adversely affected. The state would still be able to
enforce the criminal laws against those who used fraud to imperil others' lives, safety, and liberty or to rob others.

The pragmatic consequence of elevating the commercial speech standard would be to deny the government a
significant amount of the regulatory power that it now wields over speech. In the normal course of events, the state and
federal governments apply prior restraints to speech that the state regards as misleading but that may in fact be entirely
harmless. Rather than depend on private counterspeech or private litigation, the state relies on prophylactic regulations
that take the form of administrative cajolery, admonishments, and fines. Those measures are undertaken to induce
corporations to alter their speech in a way deemed acceptable to the state. That practice is censorship pure and simple.

Witness the Food and Drug Administration's recent enforcement actions against labeling it regards as misleading. For
example, in April 1991 the FDA seized thousands of cartons of Procter & Gamble Citrus Hill "Fresh Choice" orange
juice, arguing that the "fresh" label was misleading because Citrus Hill juice is in concentrate form.[62] However, it is
undisputed that no one would be harmed by consuming the concentrate; indeed, it is nutritious. Moreover, although the
product is not newly squeezed orange juice, few would suspect that it was direct from the tree, appearing as it does on
store refrigerator shelves across the country at every time of the year. In addition, the term "fresh" is ambiguous, as are
the terms "new" and "improved." Citrus Hill juice in concentrate form is "fresh" to the extent that it is not stale. It is
not "fresh" in comparison with newly squeezed orange juice. Hence, empowered by the Court's commercial speech
precedent, the FDA has embarked, once again, on a major censorship campaign, seeking to eradicate terms it finds
misleading, without proof of harm to health or safety and without regard to the chilling effect such enforcement
activities will have on the exercise of speech rights.

That expanded power to police speech and sanitize the communications environment is contrary to the First
Amendment and to its natural rights underpinnings. No sound epistemological basis exists for it, just as no such basis
exists for denying commercial speech full First Amendment protection. To render First Amendment law coherent and
to protect the natural rights to speech and press that the First Amendment is designed to safeguard, the Supreme Court
must rededicate itself to first principles. It should eschew the contrived distinctions between commercial and
noncommercial speech and harmonize the law with its natural rights foundations, thereby affording commercial speech
the same high degree of protection that is afforded political speech.

Notes

[1] Bernard H. Siegan, Economic Liberties and the Constitu tion (Chicago: University of Chicago Press, 1980).

[2] Professors Thomas H. Jackson and John Calvin Jeffries and Chief Justice William H. Rehnquist have argued that
ex tending full First Amendment protection to commercial speech would revitalize the doctrine of economic due
process. See T. H. Jackson and J. C. Jeffries, "Commercial Speech: Eco nomic Due Process and the First Amendment,"
65 Virginia Law Review 1 (1979); see also Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council,
Inc., 425 U.S. 748, 784 (1976) (Justice Rehnquist dissenting). Essentially, the argument rests on the assumption that
commercial speech is not really "speech" within the meaning of the First Amend ment but "economic activity." As a
hybrid of economic ac tivity, which is afforded the lowest level of constitutional protection, rational basis review, and
speech, which is afforded the highest level of protection, commercial speech is entitled to only low-level scrutiny, with
considerable leeway given the legislature to regulate in the "public interest." Powerful arguments with which I agree
favor revitaliz ing economic due process to provide heightened protection for private property rights, thereby returning
them to their rightful place in the Constitution. Those arguments are made elsewhere and will not be repeated here.
See, for example, James A. Dorn and Henry G. Manne, eds., Economic Liberties and the Judiciary (Fairfax, Va.:
George Mason University Press, 1987); Richard Epstein, Takings: Private Property and the Power of Eminent Domain
(Cambridge, Mass.: Harvard University Press, 1985); Siegan; Roger Pilon, "Prop erty Rights, Takings, and a Free
Society," 6 Harvard Journal of Law and Public Policy 165 (1983). The Court accompanies its antipathy to private
property rights with a presumption that there exists a dichotomy be tween "speech" and "action." However, speech is a
form of action; the creation of sound and its dissemination are "acts" even according to the most conservative
definition of that term. Any attempt to differentiate speech from action generally entails the creation of an artificial
distinction. The Court's symbolic speech doctrine is a concession to that fact. Rather than focus on artificial
distinctions, the Court should come to understand the essential epistemologi cal reasons why certain conduct, including
speech, is pro tected under the Bill of Rights. That requires a return to first principles, an understanding of the natural
rights underpinnings to the Constitution, and a rededication to those principles. When the Bill of Rights is understood
as a denial of government power over certain spheres of conduct that are indispensable to individual liberty, it then be
comes possible for the Court to interpret the Bill of Rights in a consistent manner, in harmony with rather than in oppo
sition to the philosophical principles that underlie those rights, regardless of whether the conduct in issue is the pursuit
of an economic interest or the communication ofideas and information about that interest.

[3] Compare Valentine v. Chrestensen, 316 U.S. 52 (1942), in which the Court held that "purely commercial
advertising" was unprotected by the First Amendment, with Virginia State Board of Pharmacy, 758-62, in which the
Court surveyed its precedent denying commercial speech First Amendment protec tion and concluded that speech
"which does 'no more than propose a commercial transaction,'" was entitled to First Amendment protection.

[4] See Virginia State Board of Pharmacy, 771 n. 24. The Court has repeatedly made reference to those purportedly
"commonsense differences," yet it has done so without elabo ration. See, for example, Posadas de Puerto Rico
Associates v. Tourism Co., 478 U.S. 328, 349 (1986) (Justice Brennan dissenting); Zauderer v. Office of Disciplinary
Council, 471 U.S. 626, 637 (1985); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 506 (1981); Central Hudson
Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 562 (1980); Bates v. State Bar of Arizona, 433 U.S.
350, 381 (1977) (Justice Rehnquist dissenting).

[5] See Posadas; Board of Trustees of the State University of New York v. Fox, 109 S. Ct. 3028 (1989). In Central
Hud son, 566, the Supreme Court, without defining the precise meaning of "commercial speech," nevertheless created
a test for determining its constitutionality under the First Amend ment. To receive First Amendment protection, the
commercial speech in issue had to concern a lawful activity and not be misleading; the regulation in issue had to serve
a substan tial governmental interest and directly further that inter est; and the regulation had to be no more extensive
than necessary to achieve the state's interest. Court observers noticed a dramatic shift away from the trend toward
enhanced First Amendment protection for commercial speech when in Posadas the majority applied the direct
furtherance and narrow tailoring components of Central Hudson in an anemic fashion that effectively gutted those
prongs of the test and reduced the level of scrutiny to a mere rational basis review. See, for example, P. Kurland,
"Posadas de Puerto Rico Associates v. Tourism Company: 'Twas Strange, 'Twas Passing Strange; 'Twas Pitiful, 'Twas
Won drous Pitiful," 1986 Supreme Court Review 1, 13; see also D. McGowan, "A Critical Analysis of Commercial
Speech," 78 California Law Review 359, 367, 375 (1990), criticizing the Posadas Court for embracing, as a basis for its
decision, the notion that "the greater power to completely ban casino gambling necessarily includes the lesser power to
ban advertising of casino gambling" and noting that the Court in Virginia State Board of Pharmacy had in fact rejected
that rationale for regulating advertising speech. Justice Rehnquist wrote the opinion for the Posadas Court. In dissent
after dissent over the years, he had lamented the movement away from Valentine and now had suc ceeded in
convincing the Court to turn back the clock. For example, in Virginia State Board of Pharmacy, 781, the high tide in
the ebb and flow of commercial speech jurisprudence, Justice Rehnquist deplored the majority's decision to ele vate
"commercial intercourse between a seller hawking his wares and a buyer seeking to strike a bargain to the same plane
as has been previously reserved for the free market place of ideas. . . ." In his dissent in Bates, 405, he wrote, "The
Valentine distinction was constitutionally sound and practically workable, and I am still unwilling to take even one
step down the 'slippery slope' away from it." In Fox, the Court complemented Posadas by further erod ing Central
Hudson and sustaining the movement away from Virginia State Board of Pharmacy. It also announced that the narrow
tailoring component of Central Hudson did not require the state to adopt the least restrictive means to serve the
legislature's ends; rather, the Court required only a "reasonable fit" between the legislature's chosen means and ends.

[6] A. Director, "The Parity of the Economic Market Place," 7 Journal of Law and Economics 1 (1964); see also R.
Coase, "Advertising and Free Speech," 1 Journal of Legal Studies 1 (1977).

[7] Judge Alex Kozinski of the United States Court of Ap peals for the Ninth Circuit and Stuart Banner, his law clerk,
have observed that the commercial speech doctrine is so ill-defined as to be of little use in resolving commer cial
speech issues confronting the court. They write, "Un less a case has facts very much like those of a prior [com mercial
speech] case, it is nearly impossible to predict the winner." A. Kozinski and S. Banner, "Who's Afraid of Com mercial
Speech?" 76 Virginia Law Review 627, 631 (1990).

[8] See, for example, C. Geyh, "The Regulation of Speech Incident to the Sale or Promotion of Goods and Services: A
Multifactor Approach," 52 University of Pittsburgh Law Re view 1-2 (1990) ("[F]or all the cases decided and articles
written, no one has yet managed to figure out what is meant by the term 'commercial speech' . . ."); McGowan, 360
("The Court has neither articulated a coherent theory explaining why commercial speech should or should not be
protected, nor defined commercial speech in a way that predictably classi fies different types of speech"); S. Shiffrin,
"The First Amendment and Economic Regulation: Away from a General Theo ry of the First Amendment," 78
Northwestern University Law Review 1212, 1216 (1983) ("[T]he Court's doctrinal treatment of commercial speech has
been inadequate . . ."); C. Baker, "Commercial Speech: A Problem in the Theory of Freedom," 62 Iowa Law Review 1
(1976) ("The commercial speech exception has continually eluded theoretical justification, as well as precise
definition"); M. Redish, "The First Amendment in the Marketplace: Commercial Speech and the Values of Free Ex
pression," 39 George Washington Law Review 429, 431 (1971) ("[J]ust as the Court has had an arduous task isolating
ob scenity from protected forms of expression, the burden of separating the commercial from the traditionally
protected categories of speech has been onerous").

[9] Despite the circular reasoning (that is, defining "com mercial advertising" as "commercial speech"), the Court re
lied on that definition in Valentine, 54. When it was again confronted with a commercial advertisement in New York
Times Co. v. Sullivan, 376 U.S. 254, 266 (1964), the Court refused to follow Valentine, finding "[t]he publication . . .
not a 'commercial' advertisement in the sense in which the word was used in Chrestensen" and considering it
"immaterial" that "the Times was paid for publishing the advertisement." In Pittsburgh Press Co. v. Pittsburgh
Commission on Human Relations, 413 U.S. 376, 384 (1973), the Court reasoned that "speech is not rendered
commercial by the mere fact that it relates to an advertisement."

[10] See Breard v. Alexandria, 341 U.S. 622, 641 (1951), up holding an ordinance prohibiting door-to-door solicitation
as applied to a magazine salesman and deeming the First Amendment as protection for "[o]nly the press or oral advo
cates of ideas" and not for "solicitors for gadgets or brushes."

[11] See Pittsburgh Press, 385. However, just three years after that decision, in Virginia State Board of Pharmacy, 762,
the Supreme Court reversed course again, specifically finding that speech that did "no more than propose a commer
cial transaction" was entitled to First Amendment protec tion.

[12] Central Hudson, 561-62.

[13] Bolger v. Youngs Drug Product Corp., 463 U.S. 60, 66-67 (1983).

[14] Posadas, 340.

[15] Fox, 3031.

[16] Bigelow v. Virginia, 421 U.S. 809 (1975).

[17] Schneider v. New Jersey, 308 U.S. 147 (1939).

[18] Martin v. City of Struthers, 319 U.S. 141 (1943).

[19] Breard, 622.

[20] Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977).

[21] Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978).

[22] In re Primus, 436 U.S. 412 (1978).

[23] Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530 (1980).

[24] Ninth Circuit Judge Alex Kozinski and his law clerk Stu art Banner have candidly admitted that judges cannot
"figure out precisely what forms of regulation" fall within the commercial speech doctrine and find that the case
precedent serves only as "ad hoc subject-specific examples of what is permissible and what is not." Kozinski and
Banner, 631.

[25] See, for example, Jackson and Jeffries, 5; L. BeVier, "The First Amendment and Political Speech: An Inquiry
into the Substance and Limits of Principle," 30 Stanford Law Re view 299 (1978); R. Bork, "Neutral Principles and
Some First Amendment Problems," 47 Indiana Law Journal 1 (1971); Alex ander M. Bickel, The Morality of Consent
(New Haven, Conn.: Yale University Press, 1975); Alexander M. Bickel, The Least Dangerous Branch: The Supreme
Court at the Bar of Politics (Indianapolis: Bobbs Merrill, 1962). Professors Donald Farber, Steve Shiffrin, Donald
Meiklejohn, and Martin Redish are among those who have been very critical of the "politi cal speech only" view of the
First Amendment. They each have presented persuasive arguments that commercial informa tion is indispensable to
effective participation in the political process. Professor Farber explains: Information about the quality and price of
some products may relate to important political issues. For example, a belief that American cars are over priced
influences views on foreign car import restrictions, on inflationary price increases for domestic cars, and on the effects
of oligopoly . . . . D. Farber, "Commercial Speech and First Amendment Theory," 74 Northwestern University Law
Review 372, 382 (1979). See also Redish, "The First Amendment in the Marketplace," 433; Shiffrin, "The First
Amendment and Economic Regulation," 1229-32; Geyh, 2. Meiklejohn finds advertising information indispensable to
the work of the sociologist, economist, and political scientist:

Advertisements of food, clothing, automobiles, or houses, are policy suggestions about how the
consumer's money, and the money of the consuming public at large, should be spent. The advertising
sections of the press are as instructive to the sociologist, economist or political scientist as to the
prospective buyer.

D. Meiklejohn, "Commercial Speech and the First Amendment," 13 California Western Law Review 430, 447 (1977).

[26] See Jonathan W. Emord, Freedom, Technology, and the First Amendment (San Francisco: Pacific Research
Institute for Public Policy, 1991), 79-87.

[27] Ibid., 127.

[28] See, for example, D. Anderson, "The Origins of the Press Clause," 30 UCLA Law Review 455, 463-64 (1983); S.
Shiffrin, "Defamatory Non-Media Speech and First Amendment Methodolo gy," 25 UCLA Law Review 915, 937-38
n. 157 (1978).

[29] For example, in defending himself against a charge of printing an edition of the colony's charter without authori
zation, Pennsylvania's first printer proclaimed that he was just a simple tradesman: "Governor, it is my employ, my
trade and calling . . . and that by w[hi]ch I get my living, to print; and if I may not print such things as come to my
hand, which are innocent, I cannot live." Quoted in S. Botein, "Printers and the American Revolution," in The Press
and the American Revolution, ed. by Bernard Bailyn and John B. Hench (Worcester, Mass.: American Antiquarian
Society, 1980), 20.
[30] Ibid., 17.

[31] Ibid.; Simon North, History and Present Condition of the Newspaper and Periodical Press of the United States
(1884, reprint, Elmsford, N.Y.: Maxwell Reprint Co., 1971), 9-10. [32] Botein, 17.

[33] See, for example, North, 87.

[34] Alexis de Tocqueville, Democracy in America, ed. by Richard D. Heffner (New York: New American Library,
1956), 93.

[35] See, for example, Virginia State Board of Pharmacy, 771 n. 24.

[36] Ibid.; Fox. The Court's focus on profit motives con flicts with its oft-repeated denial that it does not view the mere
quest for profit as a proper basis for a commercial speech finding. See Fox, 3036: "Some of our most valued forms of
fully protected speech are uttered for a profit." The Court has repeatedly held that the "overbreadth doctrine," which
permits plaintiffs "to challenge a statute not because their own rights of freedom of expression are violated, but
because of a judicial prediction or assumption that the statute's very existence may cause others not be fore the Court
to refrain from constitutionally protected speech or expression," [Broderick v. Oklahoma, 413 U.S. 601, 612 (1973)]
has no applicability in the commercial speech context. See, for example, Bates, 379-81.

[37] Farber, 386.

[38] Jackson and Jeffries, 34.

[39] Posadas, 345-46.

[40] See Shiffrin, "The First Amendment and Economic Regula tion," 1228, quoting Max Black, Critical Thinking: An
Intro duction to Logic and Scientific Method (New York: PrenticeHall, 1946), 212.

[41] Martin Redish made this point first. See M. Redish, "Product Health Claims and the First Amendment: Scientific
Expression and the Twilight Zone of Commercial Speech," 43 Vanderbilt Law Review 1433, 1441-42 (1990).

[42] As Roger Pilon has observed, "[T]he police power, if it is to be legitimate, must itself flow from and be justified
by the theory of rights; and it must be exercised within the constraints set by that theory. For if governments are in
stituted among men to secure their rights, then even that policy of securing rights, and the power that attends it, must
conform to the constraints set by those rights." Pilon, 183.

[43] See Epstein; Pilon.

[44] As James Madison put it to Thomas Jefferson in 1788: Wherever the real power in a Government lies, there is the
danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of
private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constitu ents, but
from acts in which the Government is the mere instrument of the major number of the Con stituents. Quoted in The
Roots of the Bill of Rights, ed. by Bernard Schwartz (New York: Chelsea House, 1980), 3:616.

[45] See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); see also Redish, "Product Health Claims," 1441.

[46] See Baker. The Supreme Court has held there to be no constitutional basis to support "the proposition that speech
that otherwise would be within the protection of the First Amendment loses that protection simply because its source is
a corporation . . . ." See First National Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978).

[47] Emord, 127-28.

[48] See, for example, Fox, 3035; Ohralik, 455-56.

[49] See Fox, 3031: "[R]espondents contend that here pure speech and commercial speech are 'inextricably
intertwined,' and that the entirety must therefore be classified as non commercial. We disagree."

[50] See Virginia State Board of Pharmacy, 771 n. 24.

[51] See John Locke, Two Treatises of Government, Books I and II (P. Laslett ed., 1988); Montesquieu, The Spirit of
the Laws, Book 2 (1748); Marvin Meyers, The Mind of the Founder: Sources of Political Thought of James Madison
(Hanover, N.H.: University Press of New England, 1981), xxiii-xxiv ("[O]ne can now say with necessary reservations
understood that Locke was indeed the prime source of founding princi ples: Locke construed by Madison in the light of
American experience and usage, i.e., with new or stricter insistence on reserved natural rights, on the secular state, and
on the popular form of government. The Declaration of Independence was for Madison a fair epitome of the doctrine
establishing 'the right of Nations to establish their own Governments' and inspiring 'a love of free ones.'"); Bernard
Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass.: Belknap, 1967) wrote: The ideas and
writings of the leading secular thinkers of the European Enlightenment--reformers and social critics like Voltaire,
Rousseau, and Beccaria as well as conservative analysts like Montesquieu--were quoted everywhere in the colo nies,
by everyone who claimed a broad awareness. In pamphlet after pamphlet the American writers cited Locke on natural
rights and on social and governmental contract, Montesquieu and later Delolme on the character of British liberty and
on the institutional requirements for its attainment, Voltaire on the evils of clerical oppression, Beccaria on the reform
of criminal law, Grotius, Pufendorf, Burlamaqui, and Vattel on the laws of nature and of nations, and on the principles
of civil government. [27]

[52] Locke, 2:269.

[53] Neither Locke nor Thomas Jefferson understood equality to mean a forced leveling of results (that is, the equality
of the modern welfare state). Rather, as Locke put it: Though I have said . . . That all Men by Nature are equal, I
cannot be supposed to understand all sorts of Equality; Age or Virtue may give Men a just Precedency: Excellency of
Parts and Merit may place others above the Common Level; Birth may subject some, and Alliance or Benefits others,
to pay an Observance to those to whom Nature, Grati tude or other Respects may have made it due; and yet all this
consists with the Equality, which all Men are in, in respect of Jurisdiction or Dominion one over another, which was
the Equality I there spoke of, as proper to the Business in hand, being that equal Right that every Man hath to his Natu
ral Freedom, without being subjected to the Will or Authority of any other Man. (2:304)

[54] Ibid., 271.

[55] Ibid., 306.

[56] Ibid., 272.

[57] Ibid., 276.

[58] Ibid., 278, 284.

[59] Ibid., 331, 359.

[60] According to Locke:

If Man in the State of Nature be so free, as has been said; If he be absolute Lord of his own Person and
Possessions, equal to the greatest, and subject to no Body, why will he part with his Freedom? Why will
he give up this Empire, and subject himself to the Dominion and Control of any other Power? To which
'tis obvious to Answer, that though in the state of Nature he hath such a right, yet the Enjoyment of it is
very uncertain, and constantly exposed to the Invasion of others. . . . This makes him willing to quit this
Condition, which however free, is full of fears and continual dangers: And 'tis not without reason, that he
seeks out, and is willing to join in Society with others who are already united, or have a mind to unite for
the mutual Preservation of their Lives, Liberties and Estates, which I call by the general Name, Property.
(2:350)
[61] Ibid., 350-51. [62] See M. Gladwell, "FDA Adopts Fresh Approach to Label ing," Washington Post, May 6, 1991,
A9.