Free Speech Gets Fuzzier

The status of “commercial speech” gets more muddled with each case that the U.S. Supreme Court decides. Until a decade ago the court had held that commercial speech--advertising or speech that merely proposes a commercial transaction--received no First Amendment protection whatsoever. Otherwise laws against false advertising would have been unconstitutional.

Then, in 1976, a funny thing happened. The court ruled in Virginia Pharmacy vs. Virginia Consumer Council that truthful advertising for legal activities was protected under the First Amendment. The following year the court extended this idea by holding that lawyers could not be prevented from certain kinds of truthful advertising.

In 1980, still struggling with this subject, the court laid down a four-part test for determining when commercial speech may or may not be regulated, and it asserted, “The Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.” The four-part test in Central Hudson Gasvs. Public Service Commission basically says that if the government has a “substantial” reason for regulating true commercial speech, it’s OK to do it.

Now the court has added yet a new twist to this maze. By a 5-4 vote it ruled that Puerto Rico could ban local advertising for gambling casinos, which are legal there. Puerto Rico wants to attract tourists from elsewhere to gamble, but does not want to encourage locals to go to the casinos. The court said it is all right to ban truthful advertising that is aimed at local residents while permitting advertising that is directed at tourists.

The decision implies that the court would uphold a ban on all cigarette advertising, which has been proposed by the American Medical Assn. In the majority opinion, Justice William H. Rehnquist said that if a state has the power to ban an activity altogether, it may ban advertising for it while not outlawing the activity itself.

If we may be blunt, this notion seems screwy. In dissent, Justice William J. Brennan Jr. said that if an activity is legal, truthful advertising for it should also be legal. Isn’t that obvious? He said that the majority’s opinion would result in “dramatically shrinking the scope of First Amendment protection available to commercial speech and giving government officials unprecedented authority to eviscerate constitutionally protected expression.”

With each new case the court draws finer and finer distinctions, furthering the hierarchy of values that are inimical to the First Amendment. When it comes to free speech, the justices keep moving in the wrong direction. They should make things simpler, not more complicated, and recognize that freedom of thought and expression are the central values of democracy.