The political economy of commercial speech

Abstract
There exists much insightful commentary on the commercial speech doctrine. Some of it debates whether its underlying premises can be neatly theorized, or whether a pragmatic approach is more germane. Other scholarship considers the merits of particular applications: for example, whether specific portions of the securities or consumer protectionor food and drug laws pass constitutional muster. Even defining commercial speech has spawned its own small cottage industry. This Article takes a different approach by discussing the political economy of commercial speech. It asks whether the recent push toward broader protections for commercial speech represents a very sophisticated attempt at putting forth a deregulatory agenda through constitutional rhetoric - a role similar to that the due process and contract clauses occupied nearly a century ago. To the extent that an overly expansive commercial speech doctrine is used to discredit agency regulation, it represents a brilliant attempt to sidestep the deference courts give regulators under Chevron. The argument is structured in two parts. Part I suggests that two movements, the Chicago school and public choice, have given intellectual legitimacy to the push for expanded commercial speech protections. Unfortunately, however, this agenda is flawed along two major dimensions. First, it glibly conflates commercial speech with core political speech at the heart of the First Amendment. Second, it suffers from a host of facile and untenable assumptions about rational consumers, self-correcting markets, and good corporations versus bad governments. The agenda is to use the First Amendment to sidestep economic regulation, much like the Lochner era relied on Fourteenth Amendment due process claims. Part II explores six curious anomalies that fuel the agenda described in Part I. These represent leaps of logic that are made seemingly without justification. Puzzles that, conveniently enough, benefit those who wish to grant ever-expansive rights to commercial speech. First, there is an inconsistent willingness to attack certain regulatory regimes, but not others. Second, corporations are simply assumed to have constitutional rights. Third, the rhetoric bizarrely shifts attention away from speakers toward listeners and information. Fourth, there is a permissive attitude toward mixing political with commercial speech, thereby sidestepping even the minimal requirement that commercial speech not be false or misleading. Fifth, there is an unwillingness to ask why a government that can regulate an underlying commercial transaction might not be able to regulate speech promoting that transaction. Finally, there is a strange desire to defer to courts as frontline arbiters of economic policy, thereby sidestepping Chevron deference.
Keywords No keywords specified (fix it)
Categories (categorize this paper)
Options
 Save to my reading list
Follow the author(s)
My bibliography
Export citation
Find it on Scholar
Edit this record
Mark as duplicate
Revision history Request removal from index
 
Download options
PhilPapers Archive


Upload a copy of this paper     Check publisher's policy on self-archival     Papers currently archived: 11,392
External links
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library
References found in this work BETA

No references found.

Citations of this work BETA

No citations found.

Similar books and articles
Analytics

Monthly downloads

Sorry, there are not enough data points to plot this chart.

Added to index

2009-01-28

Total downloads

1 ( #446,287 of 1,102,934 )

Recent downloads (6 months)

1 ( #297,435 of 1,102,934 )

How can I increase my downloads?

My notes
Sign in to use this feature


Discussion
Start a new thread
Order:
There  are no threads in this forum
Nothing in this forum yet.