Tribute to Steve Shiffrin: Panel on First Amendment principles

Panel on First Amendment Principles

Moderator: Kurt Lash, Loyola Law School Los Angeles

Keynote Address: Martin Redish, Northwestern University School of Law

Opposing commercial speech protection is wrong and indeed pathological in regulating viewpoints. Government finds the viewpoint offensive, wrong, or dangerous – we consider regulation on that basis categorically unconstitutional because it violates democratic notions of epistemological humility. In a constitutional democracy, the electorate gets to make the choice of what positions to take. (Here I presume he means individual members of the electorate, since the viewpoint-based regulation comes from the elected representatives.) It’s a Rawlsian veil of ignorance: we make a rule without knowing who’ll be in power.

The Supreme Court may have mistakenly viewed some regulations as not viewpoint-based, but it’s never upheld a regulation as viewpoint-based. You can’t recognize one exception without recognizing all exceptions – if one thing can be regulated because it’s offensive, so can the next thing that’s offensive to someone else. (“Offensive” is a key word here, as opposed to “harmful” or some other word.) There are some hidden viewpoint regulations, such as bans on flagburning justified because flagburning is a fire hazard. When a regulation isn’t justified on the rational ground asserted, it’s furtive viewpoint discrimination. There are also judicially imposed viewpoint distinctions, some of which are exceptions to general rules. There are speaker-based viewpoint restrictions, e.g., no Democrat can speak. (Another key move, it seems to me.)

Commercial speech deals with the private political process, the process of making choices and decisions that affect the individual. Imagine a society where every decision – what mouthwash to use, what restaurant to patronize, etc. – is made by the entire collective. In those cases, speech trying to persuade the collective to choose a particular restaurant would be political. We need that speech for self-government. If we cede to the individual those decisions, the individual now has 100% of the vote instead of a tiny fraction, and it’s still a self-governing choice.

The Court defined commercial speech as proposing a commercial transaction. Ralph Nader’s criticism of cars isn’t commercial speech, but the manufacturer’s defense is. Once this is the definition, a type of viewpoint regulation is going on – a new kind. “Twilight zone” viewpoint regulation, not based on dislike for the speech or the speaker’s ideology, but the ideological ether surrounding the speech. The speech isn’t controversial, but the process from which it springs is ideologically offensive to those who want to regulation. In that way it’s like obscenity. Obscenity isn’t directly a political statement, but the regulation is based on opposition to the mores and sexual values contained in obscenity.

Three justifications for regulating: (1) Rationalist arguments purporting to ground regulation in neutral First Amendment values. E.g., commercial speech isn’t part of the political process: But Consumer Reports deals with the political process. Others argue that corporations aren’t speakers because they’re economic entities. But the recipients are the ones who are making self-governing choices, and they’re who matter. Also, the NYT Co. is an enormous corporation. Baker says the difference is the product – speech v. nonspeech. Redish says, so what? Speech has often been designed to persuade others to take nonspeech acts, and that’s a commonly understood First Amendment value. Also, if the corporation is a robotic profit-maximizer, its product shouldn’t matter in whether it has a speech interest.

(2) Intuitionist arguments that commercial speech is just different. Anti-intellectualism combined with intellectual arrogance, immune from any rational response. Redish’s intuitions differ!

(3) Ideological arguments: Commercial speech promotes materialism. But the people get to decide what they need. By not protecting commercial speech, we risk reverse dilution. When we regulate speech because we think people will be fooled into buying things, why doesn’t the same thing apply in the political area? The people might believe antiwar demonstrators and make silly decisions. Either people are capable of making rational decisions through open debate or they’re not. (Okay – so I’m just as capable of making a rational decision about which drugs are effective as I am about which color looks good on me? I’m just as capable of making a rational decision about whether my child is cute as I am about whether I should buy a new car? There’s absolutism of principle, and then there’s obliteration of distinctions.)