Washington Lawyer

Commercial Speech and the Evolution of the First Amendment

From Washington Lawyer, September 2015

By Elliot Zaret

Citizens United.

Two words that even just sitting there on a line by themselves are likely to ignite passion in a reader. Two words so inextricably linked to the controversial 2010 U.S. Supreme Court ruling that they have become symbol and rallying cry alike.

To its supporters, the ruling that allowed corporations to be treated like people when it came to campaign donations and advertising was the logical extension of the speech rights guaranteed by the First Amendment. Speech is speech, they say, and laws should not discriminate based on the speaker.

To its opponents, the ruling was an act of judicial activism, increasing the already enormous amount of influence in the political system of wealthy corporations and extending rights meant for real people to entities that only exist for purposes like liability and contracts. To them, it represents what they see as a corporate takeover of America.

After Citizens United, a populist movement was born calling for a constitutional amendment to declare that corporations are not people and do not have the same natural rights.

For both sides, and in popular discussion, Citizens United v. Federal Election Commission has become synonymous with the very idea of corporate speech.

But this article isn’t about Citizens United.

That’s because for all the sturm und drang around the ruling, Citizens United is just a small shimmy in a much bigger seismic shift in how First Amendment speech rights apply to corporations and commercial activity.

This shift extends far past the campaign finance and expressive political speech issues in Citizens United. A series of Supreme Court decisions beginning in the 1970s and accelerating in recent years has dramatically changed the landscape of commercial speech and corporate speech rights, resulting in the First Amendment becoming a widely used tool for companies to challenge government regulations.

Companies in recent years have brought First Amendment challenges to such diverse issues as data mining of medical prescription information, Seattle’s minimum wage law, licensing requirements for tour guides in Washington, D.C., and rare coin dealers in Ohio, graphic health warnings on cigarette packages, meat labeling, and U.S. Securities and Exchange Commission (SEC) disclosure laws. Additionally, the First Amendment has become a primary vehicle for new challenges to restrictions on the promotion of off-label use of drugs, labeling of genetically modified organisms (GMOs) in food, and the Federal Communications Commission’s “net neutrality” regulations.

Critics and supporters alike agree that these kinds of First Amendment challenges would not have been taken seriously—and even may have been laughed out of court—as recently as 20 years ago.

“Two decades ago, if somebody had suggested that the registration scheme under the Securities Act of 1933 is a violation of the First Amendment because it requires SEC approval before you can use certain documents in the sale of securities, people would have laughed at it,” says Frederick Schauer, a constitutional law professor at the University of Virginia School of Law and former First Amendment scholar and academic dean at Harvard’s Kennedy School of Government. 

“My sense is that these days that’s less laughable than it was 20 years ago,” Schauer says. “Whether it be in the area of data mining, or source code or a whole bunch of other things of this variety, or ordinary business regulation—the antitrust area, the securities area, the [Federal Trade Commission] area, the [Food and Drug Administration] area, and so on—arguments that were laughable not that long ago are now being treated as less so.”

Among those in the legal community who acknowledge and welcome the change is Richard Samp, chief counsel at the Washington Legal Foundation, which has supported many of these kinds of cases, including Philip Morris USA’s challenge to federal law requiring graphic warnings on cigarettes and recent pharmaceutical industry challenges to FDA prohibitions on off-label advertising.

“I don’t know if [these challenges] would have been laughed at 20 years ago—they probably would have been laughed at 40 or 50 years ago,” Samp says. “Truth is convenient. Yes, it’s great that the First Amendment now protects truthful speech, and if the result of that is to inhibit government regulation, then I applaud it.”

But not everyone is applauding.

Tamara Piety, a professor at the University of Tulsa College of Law, has written prolifically on the subject in law review articles and in her book Brandishing the First Amendment: Commercial Expression in America. She argues that this expansion of the First Amendment could erode the ability for government to regulate commerce to the point where New Deal-era consumer and safety protections are undermined.

“Once everything becomes ‘expression’ then nothing is regulable,” says Piety. “It’s not like we haven’t tried the laissez faire before as a country. We had that in the 19th century; it didn’t work out so well. That seems to have been the consensus from those who were living during that period and the decades that followed . . . I think one of the things that this new First Amendment threatens is going back to that sort of regime.”

Limited Beginnings

To understand how revolutionary this new breed of First Amendment litigation is requires a stroll through the history of the notions of “free speech” and “commercial speech.” For much of the history of the nation, neither one really existed as we know it today.

At the time the words “Congress shall make no law . . . abridging the freedom of speech” were signed into our founding documents, American citizens could be arrested and prosecuted for the crime of blasphemy. Even through the 1950s, municipalities could legally ban books or movies, and suspected Communists could be jailed.

Erik Jaffe, a solo appellate attorney who has represented numerous commercial and nonprofit corporations in corporate and commercial speech cases, says the First Amendment was always there, but for a long time it was “aspirational.”

“The bulk of my views on the First Amendment [is] indeed a product of those recent cases, from post-World War II, or World War II, and forward when we tried to throw Communists . . . dissenters in jail,” Jaffe says. “In the Civil War [era], we threw people in jail all the time for sedition. The greatest president ever jailed reporters left and right like it was going out of style. It was crazy!”

During the first 150 years or so of our country, even when the First Amendment was invoked, its protections were quite limited.

“Up until about 1920, the idea of the First Amendment was that, yeah, you have a right to free speech, you can say whatever you want. However, after you say it we can throw you in jail for it, we can sue you for unlimited amounts for libel,” says Samp. “It was really, basically, just simply a First Amendment protection from prior restraint, but not much of anything else. It’s only been since about the 1920s that the modern First Amendment doctrine began and it slowly expanded.”

If any single case marked the beginning of the modern First Amendment, it may have been West Virginia State Board of Education v. Barnette in 1943. In that case, a group of Jehovah’s Witnesses challenged a law that required students to salute the American flag and recite the Pledge of Allegiance, an act the denomination believes violates their religion.

Just three years earlier, the Court upheld a similar Pennsylvania law in Minersville School District v. Gobitis. In the ensuing three years, Jehovah’s Witnesses throughout the country were targeted with violence and boycotts, and, in some places, riots.

In an uncharacteristic move, the Court in Barnette reversed its own very recent ruling and struck down the West Virginia law. Justice Robert Jackson wrote, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

The Court ruled that the government cannot force someone to say something he or she does not believe. Freedom of speech also meant freedom not to speak.

“The Jehovah’s Witnesses case is interesting in that it is really a different branch of the First Amendment—it’s compelled speech,” says Samp. “In my mind, it’s a lot worse to require people to say things that they don’t want to say than it is to restrict what they can say. The Jehovah’s Witnesses case [was] kind of the first example of compelled speech, where the Supreme Court stood up for the right of people not to say things that they don’t want to say.”

But even as the fully robust version of the First Amendment we know today was being cemented through the civil rights movement and the Vietnam War protests of the 1960s, the Supreme Court had little to say about the rights of corporations to speak or about commercial speech in general.

Regulatory Zeal to Zest

Man with megaphone. Illustration by Michael MorgensternThrough the Gilded Age of the late 19th century and into the 1930s, business was conducted with scant regulation, and attempts to impose limits were often thwarted on grounds of substantive due process.

In the seminal 1905 case Lochner v. New York, the Court struck down an 1897 law that limited bakers to working 60 hours per week or 10 hours per day. In the opinion written by Justice Rufus Peckham, the Court said that the law interfered with “the right of contract between the employer and employees.”

“The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment,” Peckham wrote in the 5–4 decision.

In his dissent, Justice Oliver Wendell Holmes wrote that the Fourteenth Amendment “does not enact Mr. Herbert Spencer’s Social Statics,” referring to the theory of “social Darwinism” that was the philosophical underpinning behind laissez faire government.

The decision and its holding of a constitutionally protected “right to contract” was eventually struck down in 1937. But during what is now called the “Lochner era”—between 1897 and 1937—the Supreme Court invoked substantive due process and equal protection in striking down nearly 200 statutes regulating working conditions, minimum wage, and child labor, among others.

That period has been criticized by both liberals and conservatives as a symbol of judicial overreach by an activist Supreme Court, subverting the democratic process.

“The lesson of Lochner was not simply that it’s dangerous for the Court to essentially create new constitutional rights that don’t have any roots in the Constitution,” says David Gans, director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center. “Lots of people say Lochner was wrong because it protected liberty of contract in this really sort of extreme way when that’s not a right that is enumerated in the Constitution and is not a right that we recognize as part of the substance of liberty . . . But it was also very actively second-guessing regulatory decisions made by democratically elected bodies.”

Down went the Lochner era and up came the New Deal era of government regulation of businesses in the name of workplace safety, minimum wage, child labor laws, food and drug safety, and so on.

Still, throughout the Lochner era’s anti-regulatory zeal, the New Deal’s regulatory zest, and up until the mid-1970s, the Supreme Court made no assertion that commercial speech was protected by the First Amendment. To the contrary, the only time it weighed in on the subject, the Court found that commercial speech and advertising deserve no First Amendment speech protection.

In 1940 a man named F. J. Chrestensen, who happened to own a World War I submarine, moored his ship at a state pier on New York City’s East River and began passing out handbills advertising tours. Chrestensen then learned that distributing handbills for commercial purposes was against a city sanitary code meant to curtail litter, but he was also told that the code exempted handbills “devoted to public protest.” So Chrestensen printed a new set of handbills with his advertisement on one side, and a protest against the statute on the other. The police commissioner, Lewis Valentine, shut him down and the case worked its way through the courts.

Valentine v. Chrestensen reached the Supreme Court in 1942. In a unanimous ruling, the Court found that any speech used to promote a commercial activity was not protected by the First Amendment. Justice Owen Roberts wrote that it’s clear that the First Amendment protects political speech from regulatory burden. But then he continued: “We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.”

Roberts went on to call the protest on the handbills an “evasion,” and wrote that “[i]f that evasion were successful, every merchant who desires to broadcast advertising leaflets in the streets need only append a civic appeal, or a moral platitude, to achieve immunity from the law’s command.”

So any speech related to commerce was not protected under the First Amendment, and even when the speech was advocacy it should be presumed to be an evasion since the main goal of any business is commercial. And that was how things stood for more than 30 years.

Rise of New Speech Doctrine

In the mid-1960s, new ideas started percolating by students writing in law reviews about commercial speech. Maybe, the articles argued, commercial advertising should have some First Amendment protection because it serves an informational function for the consumer. One article referred to commercial advertising as the “stepchild of the First Amendment” and suggested its social benefits might earn it some protection.

“Maybe that’s part of a bigger trend of the growth of one of the major industries of the 20th century, which is, broadly speaking, the promotional industry,” says Piety. “So everything connected with promotion: advertising for sure and its kind of core functions, that Mad Men sort of thing, but also public relations and the idea of leveraging news content.”

The pendulum, Piety says, had swung from the Gilded Age excesses and Lochner era laissez faire to consumer protection and labor regulations of the New Deal. And now bolstered by the post-World War II growth, the pendulum was starting to swing back.

“They had all this war surplus and they needed to get people to purchase things after the privations of World War II and boost the economy through consumption,” says Piety. The public relations and marketing industry “was promoting the consumer society, doing things like promoting the idea of homeownership . . . of business as a progressive and important contributor to well-being.”

In 1971 two documents were published that helped push the pendulum along. First, Northwestern University law professor Martin Redish, then a private attorney, published “The First Amendment in the Marketplace: Commercial Speech and the Values of Free Expression,” which argued that commercial speech was essential to the flow of ideas, which are necessary for a democratic society. Commercial speech needed protection because of the interest of the listener, regardless of the commercial benefit to the speaker, he argued.

We should “require an open exchange of ideas and information in the marketplace that will help the individual govern his personal life,” Redish wrote.

Second was a confidential memorandum written to the U.S. Chamber of Commerce by a prominent corporate attorney entitled “Attack on American Free Enterprise System.”

“No thoughtful person can question that the American economic system is under broad attack,” the 34-page memo began. At stake, it said, was “survival of what we call the free enterprise system, and all that this means for the strength and prosperity of America and the freedom of our people . . . We in America already have moved very far indeed toward some aspects of state socialism, as the needs and complexities of a vast urban society require types of regulation and control that were quite unnecessary in earlier times.”

The prescription was for the Chamber to lead a coordinated long-term advocacy effort to push business-friendly ideas on campuses, step up political lobbying to reduce regulations, and, “most important,” use the judicial system by bringing advocacy cases and filing amicus curiae briefs in the Supreme Court.

“Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change,” said the memo. “Other organizations and groups, recognizing this, have been far more astute in exploiting judicial action than American business . . . This is a vast area of opportunity for the Chamber.”

Two months later, the memo’s author, Lewis Powell Jr., was nominated to the Supreme Court. And in 1976, Justice Powell would join in the opinion that established the “commercial speech doctrine.”
 
In the Name of Public Interest

The Commonwealth of Virginia had passed a law that made it illegal for pharmacists to advertise prices of prescription medicine, saying that doing so could promote aggressive advertising that would ultimately hurt consumers by diminishing the service pharmacists could provide. A consumer group challenged the law saying that citizens had a right to the price information.

In its 7–1 ruling in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., the Court overturned the law, arguing that the distinction between regular speech and commercial speech was “simplistic.” The real issue, the Court said, was that the speech itself was satisfying the public interest by preserving the free flow of information. As long as the advertisement was truthful and not advertising anything illegal, it should be protected by the First Amendment.

“As to the particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate,” Justice Harry Blackmun wrote. “Those whom the suppression of prescription drug price information hits the hardest are the poor, the sick, and particularly the aged . . . Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable.”

The shift from the rights of the speaker to the rights of the listener marked a huge change from Valentine v. Chrestensen, according to Piety.

“They don’t give a theory about why the speaker should have any rights,” Piety says. “They just jump over that to get right to the listeners. But all of their rationales are based around the importance of this information to listeners and to the public as a whole.”

In a sharply worded dissent, Justice William Rehnquist accused the Court of judicial activism. While the flow of information may be beneficial to the free market and that might be good policy, Rehnquist echoed Holmes’ dissent in Lochner, writing, “there is certainly nothing in the United States Constitution which requires the Virginia Legislature to hew to the teachings of Adam Smith in its legislative decisions regulating the pharmacy profession . . . It is undoubtedly arguable that many people in the country regard the choice of shampoo as just as important as who may be elected to local, state, or national political office, but that does not automatically bring information about competing shampoos within the protection of the First Amendment.”

Rehnquist went on to predict that results of the new commercial speech doctrine would not “be limited to allowing advertising by the professions,” but would be used to challenge labor laws and bans on cigarette and alcohol advertising and other promotions of prescription drugs.

Which is of course what would happen, though not right away. A few more rulings helped it along.

In 1978, in First National Bank of Boston v. Bellotti, the Court would cite Virginia Pharmacy in a 5–4 decision striking down a Massachusetts law that banned corporations from spending money in state referenda that did not directly affect their business.

“We thus find no support in the First or Fourteenth Amendment, or in the decisions of this Court, for 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 that cannot prove, to the satisfaction of a court, a material effect on its business or property,” wrote Powell, who went on to directly quote from Virginia Pharmacy. “A commercial advertisement is constitutionally protected not so much because it pertains to the seller’s business as because it furthers the societal interest in the ‘free flow of commercial information.’”

Two years later, in Central Hudson Gas & Electric Corp. v. Public Service Commission, the Court struck down a New York law passed during the energy crisis of the ‘70s that, as part of a policy to reduce electricity usage, banned utility companies from promotional advertising.

The 8–1 decision, written again by Powell, cited both Virginia Pharmacy and Bellotti in setting a new four-step test for protecting commercial speech: (1) the speech has to concern a lawful activity and cannot be misleading; (2) the asserted governmental interest is substantial, (3) the regulation “directly advance[s] the governmental interest asserted,” and (4) the regulation is “no more extensive than is necessary to serve the interest.”

As in Virginia Pharmacy, Rehnquist—who had by this point become the Court’s commercial speech Cassandra—was the lone dissenter (he also dissented in Bellotti). This time he even more forcefully accused his colleagues of judicial activism and warned that the case would mark a return to the Lochner era.

“The Court in so doing returns to the bygone era of Lochner v. New York, in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to implement its considered policies,” Rehnqhist wrote. “I had thought by now it had become well established that a State has broad discretion in imposing economic regulations.”

Rehnquist said “the Court unlocked a Pandora’s Box when it ‘elevated’ commercial speech to the level of traditional political speech by according it First Amendment protection in Virginia Pharmacy Board.”

“What time, legal decisions, and common sense have so widely severed, I declined to join in Virginia Pharmacy Board, and regret now to see the Court reaping the seeds that it there sowed. For in a democracy, the economic is subordinate to the political, a lesson that our ancestors learned long ago, and that our descendants will undoubtedly have to relearn many years hence,” he added.

Rewriting of Legal Order?

John Coates IV, a professor of law and economics at Harvard, recently conducted an analysis of just how much of Rehnquist’s predictions have come to fruition. In his paper “Corporate Speech and the First Amendment: History, Data, and Implications,” Coates compiled every Supreme Court case involving speech, press, or assembly between 1946 and 2014.

Coates found that before Virginia Pharmacy, businesses were involved in 26 percent of the cases—an average of 1.5 cases per year—but after the ruling that number jumped to 34 percent of the cases, or 2.2. cases per year. (The total number of such cases per year did not change). Further, he found that before Virginia Pharmacy, business won 20 percent of the First Amendment cases, and 55 percent after it.

Even more notable, he wrote, was the type of cases in the two eras. Coates drew the distinction between expressive businesses, where the primary function is expressive speech (such as newspapers and other media), and non-expressive businesses, where expression is secondary to the business’s commercial activity.

“More important, expressive businesses brought all of the business victories under the First Amendment prior to Virginia Pharmacy,” Coates wrote. “No non-expressive business—which is to say, no business not engaged in expression for its primary revenue-producing activity—was able to achieve an offensive First Amendment case prior to 1976. Put differently, the era in which businesses have used the First Amendment to achieve de- or re-regulatory goals beyond their core revenue-producing activities falls entirely in, with increasing frequency during, the last thirty years since the First Amendment’s adoption in 1791.”

According to Coates, the use of the First Amendment for deregulatory goals amounts to “what economists call ‘rent seeking,’ or in more legal language, socially wasteful transfers, or in ordinary language, theft, waste and graft.”

“The result is not simply de- or re-regulation, moreover—not simply a New Lochnerism,” Coates wrote. “Rather, the result also undermines the rule of law more generally. Precedents are overturned; stare decisis becomes a joke; constitutional entrepreneurialism runs amok. Radicals in pinstriped suits rewrite whole elements of long-established legal order. Under First Amendment threat, laws become quantum objects—partly there, partly not there.”

Content Is Speech

The trend has been accelerating in the past five years, starting with Citizens United in 2010.

While Citizens United was focused on campaign finance and expressive speech, as opposed to commercial speech, it strengthened Bellotti’s assertion that the law cannot discriminate against corporations as a class of speakers. Speech is speech, regardless of whether the speaker is flesh and blood or a corporate entity.

But perhaps more important than Citizens United was a case decided a year later that received significantly less attention.

The case revolved around a sales technique used by pharmaceutical representatives to convince doctors to prescribe their drugs. The sales technique, called “detailing,” involved getting a doctor’s verbal agreement to prescribe certain medications. (Marketing research has found that people in general are much more likely to follow through on a sales pitch if they make even a non-binding verbal commitment to do so.) But the pharmaceutical companies had no idea how successful their sales representatives actually were.

Data brokers like IMS Health aggregate sales data from the nation’s pharmacy chains and then sell the detailed reports—which show exactly how many of which medicine each individual doctor prescribed in a particular week—to pharmaceutical and biotechnology companies. (Patient information was protected by federal law.)

While it’s easy to see how this information would be valuable to sales representatives, many doctors found it creepy at the least, and a violation of their privacy. Further, some states worried that it would drive up health care costs because the technique could get doctors to prescribe more name-brand medications rather than the cheaper generic alternative.

So three states—Maine, New Hampshire, and Vermont—all passed different laws to ban the data mining of prescriptions and the dissemination of the material. By 2010, 26 states were considering similar laws. IMS Health sued the three New England states on First Amendment grounds, and the one against Vermont eventually made it to the Supreme Court as Sorrell v. IMS Health.

In a 6–3 ruling, the Court struck down Vermont’s Prescription Confidentiality Law in 2011. Writing for the majority, Justice Anthony Kennedy (who also wrote the majority opinion in Citizens United) said that the practice of data mining counted as speech because it was part of the flow of information, and that the “creation and dissemination of information are speech within the meaning of the First Amendment.” Content is speech, and Vermont’s law, he wrote, was discriminating against one kind of content.

“Vermont’s law does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers,” Kennedy wrote. Then in a direct jab at his critics—notably Justice Steven Breyer who, in his dissent, like Rehnquist before him, accused the Court of Lochner-like activism—Kennedy invoked Justice Holmes’ words from Lochner: “The Constitution ‘does not enact Mr. Herbert Spencer’s Social Statics.’ It does enact the First Amendment.”

But the critics are not convinced.

“I do think in a great sense it is a revival of Lochner in the name of protecting freedom of speech,” says Gans. “Even in areas where what’s being regulated seems much more like economic regulation than an exercise of freedom of speech, you can think about the data mining case of Sorrell where it’s not really clear that this is the corporation speaking; the corporation wants access to information.”

Piety notes that the ruling was particularly ironic because Virginia Pharmacy, which gave birth to the commercial speech doctrine, was framed in terms of consumer protection, yet in Sorrell—and in cases that have followed—the same doctrine is being used to fight consumer protection laws.

“It turns Virginia Pharmacy upside down, so it’s not a tool for consumer protection, but rather can be used against things that maybe consumers want, like . . . the Do Not Call Registry, or blocking pop-up ads, or blocking data mining and saying ‘I don’t want this advertising,’” Piety says.

New consumer protection laws will be harder to pass, she says, because “the First Amendment is like a game-ender”—companies can win “at the motion to dismiss stage before there’s any discovery or any further litigation. And that’s a very powerful counterforce to legislative efforts.”

Schauer sees these sorts of regulatory challenges as “First Amendment opportunism,” a term he coined in a paper of the same name he presented to the Federalist Society in 2000 while serving as academic dean at Harvard’s Kennedy School of Government.

“They are objecting to government regulation, and because they are objecting to a form of government regulation that happens to be about words or signs, all of a sudden the First Amendment gives them an argument,” Schauer says. “We operate in a world in which a huge amount of what we do involves words, and therefore involves speech.” He says a huge amount of regulation by government agencies such as the FTC, the FDA, the Occupational Safety and Health Administration of the U.S. Department of Labor, the National Labor Relations Board, and the SEC involves the regulation of speech.

“If every time government regulation touched on speech [and we treat it] as a First Amendment problem, [it] would jeopardize a considerable amount of, let us call it the post-New Deal regulatory state,” Schauer says. He says this includes the FDA and labeling, the FTC and labeling and truth in advertising, and the SEC in terms of truth in security sales.

But, according to Schauer, as important as whether the First Amendment is being overused is “the question of if we use the First Amendment for almost everything, will it be there when we need it the most?”

“That is, if we think the First Amendment is the appropriate vehicle to deal with this panoply of uses of speech everywhere, have we lost [its] somewhat more targeted effectiveness, or targeted sting . . . when we have government trying to shut down its critics, when we have people participating in political debate, and some number of other things that philosophically, normatively, and historically are at the core of what the First Amendment is all about,” Schauer says.

No Cause for Alarm?

Jaffe, whose practice focuses on constitutional issues and litigation in the Supreme Court, disagrees. The commercial speech cases are doing exactly what the First Amendment intended, he says.

“The one thing I know for sure is that there is a First Amendment in the Constitution and it says Congress can’t restrict speech,” Jaffe says. “Speech is somehow different than the other stuff. Congress can restrict economic activity, we know that. Congress can regulate all sorts of things, that’s in Article I. We have a whole long list of what they can do.

“But they can’t do this, which says to me that, by definition, speech is different. It doesn’t tell me necessarily how it’s different. It doesn’t tell me how much it’s different. It doesn’t tell me what standards to apply. It doesn’t tell me any of that. It just tells me that if I’m going to draw a coherent line that is faithful to the Constitution, I have to make [it] harder, if not impossible, but at least harder to stop speech than it is to stop driving on the road or selling your car or something.”

As for the increase in the number of cases involving corporate or commercial speech to challenge regulations, Jaffe says that’s just because corporations couldn’t make the challenges before.

“I wouldn’t worry that in the wake of a clarifying decision that says corporations can indeed raise First Amendment claims that suddenly there are a lot of First Amendment claims, because they were backed up in the system,” Jaffe says. “Eventually they’ll pass. They’ll go through like a bad penny. Eventually we’ll set up the rules. We’ll figure out where the lines are, and then those cases will fade back into the background as always.”

Cases that challenge labeling requirements are really no different than the Jehovah’s Witnesses case challenging a law forcing them to say the Pledge of Allegiance or to salute the flag, according to Samp of the Washington Legal Foundation. It’s simply a matter of compelled speech.

“On the one hand, everybody agrees that in order to ensure that consumers aren’t misled that you can require advertisers to include a little disclaimer at the end of the ad,” says Samp. “What has happened in recent years is that the government has taken that right to disclaimers and has tried to broaden it significantly so that now these disclaimers aren’t . . . simply trying to prevent people from being misled, but rather they are the government requiring companies to carry the government’s message.”

To Samp, the fear that the new spate of commercial speech cases will end the ability for government to regulate commerce is overblown.

“I haven’t seen that happening,” he says. “Instead, what I see happening is the number of regulations [expanding] exponentially every year. I don’t think we’re in danger of having government regulations eliminated.”

Mostly, the rhetoric around the issue needs to be toned down, Samp says.

“Of course there are close questions about whether certain things are covered by the First Amendment or not, and people can reasonably disagree,” Samp says. He argues that focus should be on close questions, such as whether government can require labeling for GMO products as a matter of First Amendment, and people can debate in good faith.

“But immediately they start saying, ‘Oh, our opponents are trying to resurrect Lochner!’ Or in other issues you get people saying, ‘Oh, well, they’re climate deniers,’ or whatever. I think it’s unfortunate that much of the debate on a lot of issues, and certainly including the First Amendment issues, has sort of become an attack on opponents . . . I think Citizens United encapsulates that probably as well as anything,” Samp says.

Elliot Zaret is a freelance journalist who has been covering legal issues for more than two decades.