The Constitution at a Crossroads

Protecting Commercial Speech and Personal Privacy in the Internet Age: Is the Court Lochnerizing the First Amendment? | Chapter 6

With a majority on the Supreme Court appearing to move toward applying strict scrutiny to regulation of commercial speech, a wide variety of regulatory actions that affect speech within the Court’s ambit, and important constitutional challenges to federal regulation of tobacco advertising moving through the lower federal courts, the First Amendment’s protection of commercial speech is at a crossroads.

Summary

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.

~ Justice William Rehnquist

In an earlier chapter of Crossroads, we considered the sharp divide on the Supreme Court concerning the First Amendment rights of corporations to spend unlimited amounts of money to influence elections and the explosive impact the Court’s 2010 ruling in Citizens United v. Federal Election Commission is having on campaign finance laws. This chapter examines recent developments in the law of commercial speech, in particular, the Court’s 2011 decision Sorrell v. IMS Health, Inc., which announced a substantial expansion in the protections that the First Amendment affords to the commercial speech of corporations. In bitter dissents in Citizens United and Sorrell, Justice John Paul Stevens and Justice Stephen Breyer argued that the Court was perverting the First Amendment by giving corporate speakers the same rights as individuals (in Citizens United), and by moving to provide commercial speech with the same protection as political speech (in Sorrell). Both of these dissents warn that the Court may be moving the country back to the Lochner era, a time when conservative majorities used trumped up constitutional arguments to impose constitutional obstacles to economic regulation by federal, state, and local governments.

The Court’s treatment of commercial speech has followed a remarkable trajectory over the past 70 years. In 1942, the Court unanimously ruled that commercial speech was not protected at all under the First Amendment. Since then, the Court has expanded the protection given to commercial speech, while recognizing that governments have substantial latitude to regulate commercial advertising and that commercial speakers may be subject to numerous forms of government regulation that would be unconstitutional as applied to political speech. This expansion has been supported by both liberal and conservative Justices, who have united around the view that commercial speech is entitled to the protection of intermediate scrutiny, a standard that has led the Court to strike down some state regulations while upholding others.

But in Sorrell, the Court’s 6-3 opinion substantially expanded the protection due to commercial speech, broadening the scope of what is considered “speech” in the commercial area and increasing the appropriate level of scrutiny for laws that burden such speech. In Sorrell, the Court’s five conservative Justices, joined by Justice Sonia Sotomayor, held that forms of marketing research such as data mining are “speech” protected by the First Amendment and moved toward providing commercial speech the same level of heightened protection long accorded to political speech. In dissent, Justice Breyer, joined by Justices Elena Kagan and Ruth Bader Ginsburg, warned that the majority was pushing the nation back toward Lochner. The Sorrell ruling imposes a heavy burden on the government to justify protections for
personal privacy in an internet age, when companies such as Amazon and Google possess enormously valuable and enormously sensitive information about every one of us.

With a majority on the Supreme Court appearing to move toward applying strict scrutiny to regulation of commercial speech, a wide variety of regulatory actions that affect speech within the Court’s ambit, and important constitutional challenges to federal regulation of tobacco advertising moving through the lower federal courts, the First Amendment’s protection of commercial speech is at a crossroads.

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