Free speech protects ideas, including the right to truthfully advertise

June 03, 2021 | By JIM MANLEY
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Free speech is all around us, even in ways that might not be immediately obvious.

We talk a lot about the First Amendment’s free speech protections during campaign season, when individuals want to express a deeply held idea, when they want to refrain from speaking, and when an idea is deemed “unacceptable” by certain groups.

The Constitution’s protection of free speech surely matters in all those situations, but free speech is a much broader value than that—it is at the root of our most basic human and social needs, including our economic dealings.

Our daily economic lives depend on free speech in underappreciated ways. Many of us earn our livelihood through creative activity and trade, and both are directly related to the First Amendment. But every single one of us depends on commercial messages—advertisements, solicitations, and descriptions of products and services—to improve our economic well-being in one way or another.

All those boxes on the grocery store shelves, for example, are not just dinner; they are the tangible expression of the First Amendment.

But surprisingly, courts have not treated this essential and routine expression of free speech to full First Amendment protection.

Since the 1980 case of Central Hudson Gas & Electric Corp. v. Public Service Commission, several Supreme Court decisions have created an untenable hierarchy in First Amendment law. The law sometimes reserves the highest protection for the expression of political ideas but allows the government more latitude to restrict speech that provides commercial information.

Further, courts have held that speech by compensated professionals may be regulated in ways that political speech may not.

So when award-winning restaurateur Chef Geoff Tracy wanted to advertise happy hour deals at his Virginia restaurant, the speech police were waiting to shut down ads that used the verboten phrases “happy hour” or “two-for-one.” Why? Because of an arbitrary law restricting his freedom of speech.

Virginia law allowed restaurants to offer half-priced drinks but made it illegal to call these specials “two-for-one.”

A similar situation faced Peggy Fontenot, an Indian artist who belongs to a tribe that the State of Oklahoma doesn’t recognize. When she marketed her artwork as “American Indian-made,” the state told her she didn’t qualify as a “real” Native American.

Likewise, the Georgia Board of Nursing was worried that if Debbie Pulley honestly explained her decades of experience as a midwife, people might jump to the conclusion that she was a practicing registered nurse—so they tried to deny her the right to use the word midwife to describe herself.

In each of those cases, Pacific Legal Foundation fought back and won, protecting the right of free speech. But in each of those cases, the odds were stacked against us because the speech touches on economic regulations. Government had a thumb on the scale that wouldn’t be there in any other free speech case.

Because the courts have created a two-track First Amendment, numerous free speech principles that protect the free expression in some contexts have no application to commercial or professional speech.

The overbreadth and prior-restraint doctrines prevent government from regulating speech with too broad a brush, or stifling speech before it is uttered, but they are generally inapplicable to commercial speech restrictions. And while restrictions on noncommercial speech that discriminate against certain topics—what courts call “content-based” restrictions—are subject to the highest judicial scrutiny, content-based restrictions on commercial speech remain subject to only middling review.

Justice Clarence Thomas has correctly written that there is no “philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech.”

The truth is that for many people, seemingly mundane communications about products, services, prices, and economic opportunities are as important to them in their daily lives as the most contentious or momentous political debates. This is truer than ever in the age of the internet, where global trade thrives online and new ways of delivering professional services, like telemedicine and online education, are becoming the norm.

The free exchange of ideas and information is vital for human progress in both our intellectual and material lives.

PLF is committed to the consistent application of the First Amendment, overturning the precedent that has undermined protections for commercial and professional speech.