Berkeley Law

Commercial speech doctrine is presently controversial and confused. The article seeks to clarify why the Court has protected commercial speech, and then to use these insights to elucidate the disputes that presently engulf the doctrine. The article argues that "commercial speech" is protected because of its "informational function." This contrasts sharply with "public discourse," which is protected to ensure forms of participation necessary to sustain democratic legitimacy. The boundaries that separate commercial speech from public discourse reflect sociological judgments about whether particular forms of communication are valued merely for their information, or instead as forms of communicative action that embody democratic participation. The article explores how the Court makes these judgments. It uses this difference in the constitutional value of commercial speech and public discourse to explain why the state can compel disclosures, impose overbroad regulations, and establish prior restraints within the domain of commercial speech, but not within the domain of public discourse. The article then analyzes in detail the Central Hudson test, which sets forth the rules by which the Court currently decides whether regulation of commercial speech is constitutionally justified. The test is abstract and unhelpful, because it does not reflect any particular constitutional theory of the value of commercial speech. The article assesses the ways in which the Central Hudson test can be rendered consistent with the constitutional justifications for protecting commercial speech, paying particular attention to current controversies regarding whether the state can suppress truthful commercial speech in order to modify behavior.