Commercial speech conference: the basic debate over equalizing protection

Here, maybe less of a debate, since the speakers were largely critical of Central Hudson.

Conrad Shumadine, member, Wilcox & Savage, Commercial Speech: The Illusory Search for Absolutes. Shumadine argued for greater parity between commercial and political speech; if we trust our citizens to make political decisions based on free, robust and wide-open dissemination of information, we should trust them to make commercial decisions. (Or maybe there are situations in which we trust the government and others in which we don’t.)

Shumadine argued Edge Broadcasting -- lottery broadcasting across state lines -- and believes that the rules the Court applies are standardless and certainly not empirically based, a proposition with which I’d have to agree.

Question: what is useful information? Answer: information is inherently useful. Ignorance is never better than knowledge. (Does image advertising decrease ignorance, or just rearrange it? Is “Coke is it” informational? Is a statement by an actor that “playing the lottery is fun” informational?) The marketplace will take care of things like offensive lawyer advertising.

Bruce Johnson, partner, Davis, Wright, Tremaine, Amendment XXVIII? Defending Corporate Speech Rights. He’s a victim of commercial speech overregulation, from New York’s new attorney advertising rules – all lawyer websites must say “advertisement; results may vary.” From now on, his website biography says: results may vary. What does that mean? It’s characteristic of commercial speech regulation in being overzealous and somewhat useless.

This standardless system is ripe for abuse by ideologues. As Kozinski and Banner wrote, liberals mistrust commercial speech because it’s commercial; conservatives mistrust speech because it’s speech. This political valence is the enemy of consistent decisions.

Nike v. Kasky highlights all the doctrine’s problems, especially the dangers of moving speech beyond a transaction-oriented definition. (My own opinion is that the California Supreme Court applied current doctrine correctly in Kasky, and that the letters to athletic directors were uncomplicatedly commercial speech, even “transaction-oriented” speech.) California’s former consumer protection law allowed lawsuits without any harm, and business groups accused lawyers of creating shakedown systems. Marc Kasky wasn’t one of those, but he didn’t like corporations or free trade much. He’d never bought a Nike shoe and never would. The First Amendment bar ignored the case at the state level; the regular press ignored the case until the California Supreme Court decided it.

Notably, the four judges in the majority were the ones who regularly vote for the press in typical First Amendment cases, and the three dissenters were the ones who are least likely to accept average First Amendment arguments. Politics was very important here.

Johnson finds the California Supreme Court’s test for commercial speech to be a significant expansion of previous tests. He was surprised that SCOTUS dismissed the case as improvidently granted, because that leaves this test in place. There were more than 30 amicus briefs submitted, including one from reclaimdemocracy.org, which typifies the ideological problems in every non-transactional commercial speech regulation these days. This group believes in a constitutional amendment that would protect only living human beings, so corporations would have no constitutional rights. The state Democratic party in Washington has adopted this as part of its platform, as have some California municipalities.

But corporations include entities like Harvard College and the Washington Post. Also, speech by corporations comes from some human. Corporations don’t speak; people speak. Just like guns. If we use the Nike “commercial purpose” test, then any corporation can be found to be engaged in commercial speech at any time and its speech can be suppressed. (Caveat: under Kasky, this is only true if the speech is false or misleading. There’s no First Amendment interest in speaking falsely, though of course issues of burden of proof and chilling speech loom quite large.) Government should not be in the business of deciding that a business is too large to have a voice in public debates. And the public has an interest in receiving businesses’ ideas.

(I remember reading Kasky’s brief in opposition to cert and thinking that (a) the arguments about the vehicle defects that made this a poor cert candidate were entirely correct and (b) the arguments about the vehicle defects were unlikely to prevent the Court from taking such a sexy First Amendment case. As it turns out, I was right on both counts – not something that’s so common that I can afford to keep silent!)