Tag Archives: free speech

A Billboard In Peru, And The Obsolescence Of The Commercial Speech Doctrine

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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. 

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Content Marketing And The Great Commercial Blur

By: Brian J. Meli

Back in the quaint old days of the the 1970’s and early 80’s, when the Internet was still a college science project and social networking was something you did around a water cooler, the US Supreme Court decided a series of First Amendment cases that established the modern-day boundaries between inviolate non-commerical speech (personal, religious, political speech) and less revered, but still important commercial speech.

iStock_000020102137_ExtraSmallThe result was a distinction between communication that’s subject to government restriction on the basis that it’s false or misleading (commercial), and speech that’s beyond the reach of regulation no matter how untrue or inaccurate it may be (non-commerical). It’s a distinction—and a precedent—that still stands today, nearly 40 years and numerous technological revolutions later. But the longevity of the distinction has less to do with the clarity of the decisions that formed it, and more to do with the Supreme Court resisting reexamination of an issue that, now more than ever, demands drawing boundaries between concepts that can be almost impossible to distinguish, let alone define. Continue reading

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