By: Brian J. Meli
For nearly forty years the fault line dissecting freedom of speech under the First Amendment has been a concept as widely accepted in judicial circles as Newton’s law of gravitation in scientific ones. One side of that line belongs exclusively to commercial speech, more commonly known by its street name: advertising. The other side is the domain of non-commercial speech, which is more or less anything that isn’t advertising. Both are protected, but only the latter is considered sacred, and therefore except for a few rare instances (“fire!” in a crowded theater) it’s off-limits to regulators. The distinction is so widely recognized that no one gives it much thought anymore. If you’re the CMO of an e-cigarette company, you know there are limits to what you can say in your advertising, and on your labeling and packaging. But if you’re invited to appear on 60 Minutes, or you’re interviewed by the Wall Street Journal, you’re largely free to express your personal opinions about your product. Whether or not you’re actually conscious of the fact that the former is commercial speech and the latter likely isn’t, you inherently know there’s a difference.
