Commercial Speech: Protected or Not?

When the Founding Fathers composed the Bill of Rights, they wrote the amendments in a manner that can be taken literally or that can be interpreted to fit a narrative; it all depends on the issue. The First Amendment is no different. Buried deep down in the freedom of speech clause, right next to the permanent protection of political speech, is a lesser talked about type of speech: commercial speech.

It is hard to say the immediate intent of the Founders when determining whether or not commercial speech is protected. Advertising and marketing as we know it today is totally different from that of 1789 when the Bill of Rights was ratified. What can be said though, is that speech is a fundamental personal right that is guaranteed to all individuals; including corporations.

From tobacco companies to alcohol companies to car companies, advertising, when not deceptive, is protected. The government cannot dictate the ways in which companies advertise their products to potential consumers. This being said, the government does have a heavy hand in the regulation of commercial speech through a smorgasbord of government agencies ranging from the FDA (Food and Drug Administration) to the FCC (Federal Communications Commission).

The inclusion of commercial speech under the umbrella of the First Amendment is a relatively new model. Following the 1976 case of Virginia State Board of Pharmacy v. Virginia, the Supreme Court defined commercial speech as "no more than to propose a commercial transaction."

This is a very important development for free speech. To me, commercial speech is as important as political speech. If the government controls the messaging of a company, then the government controls the consumption of products by consumers and the last thing America needs is the government putting their hands into something else. They already tax the product we are buying, they should not be able to tell us which product is worth buying.

Clearly executive agencies like the FCC should regulate marketing, advertising, and media programming to ensure that our country and our people are protected from harmful and deceptive media. But, they should continue to not impose such regulation as to thwart businesses that are appropriately conducting themselves. Take the story from the United Kingdom as an example. Thank goodness our government is not in the business of controlling commercial speech like that... oh wait.

See in the United Kingdom, their government is banning the paid advertising of junk food on television during the daytime. Now, here in the United States we are not that extreme. But, our government does regulate commercial speech in a manner that is comparable, though not exactly the same, as the United Kingdom.

In the United States, corporations in the alcohol and tobacco industry are required, by law, to have warning labels about the consumption of their product; this is a government regulation. Tobacco companies no longer advertise in sports like NASCAR; this is an industry initiative. While the government does not dictate or require commercial speech to be a certain way, private industries are able to determine the validity of their advertising and make decisions without the heavy hand of government intervening.

It is funny actually, talking about government warning labels. I recently watched a documentary on Netflix called "Don't F*ck With Cats" in which a group of people investigate a video where a man kills kittens. They used clues from the video to track this person down and report him to the police. In one of the frames they were able to determine that the individual lived somewhere in North America, within proximity to the United States, because in 1 microsecond of a frame a carton of Marlboro Lights contained the Surgeon General Warning... crazy!

As Kerr notes in his writing, commercial speech protection is fundamental to a free and prosperous nation. Advertising, even those gaudy commercials that are a little risqué for television- looking at you Hardees- are protected as long as they follow government regulations and do not enter into deceptive and false media.

In the end, Americans will never let the government become so tyrannical they begin to ban speech. After all, when has America not been down to start a little drama here and there...?