Unsolicited bulk email (”spam”) is not protected by the First Amendment, although it may not be long until it is. Last month a court struck down the federal “junk fax” law, and the Supreme Court struck down a federal law prohibiting pharmacies from advertising “mixed-to-order” drugs, for example. Both of these cases indicate that a corporation’s “right” to market trumps the government’s interest in protecting the citizenry.
A disturbing trend in constitutional law—led primarily by conservatives like Supreme Court Justice Clarence Thomas—is to blur the line between commercial (unprotected) and noncommercial (protected) speech, as Adam Cohen points out in a New York Times editorial published last Sunday.
Until relatively recently, commercial speech enjoyed no First Amendment protection at all. Cohen cites a 1942 case where an owner of a former Navy submarine was prohibited from distributing advertising flyers because the flyers littered the streets. The Supreme Court’s decision in the case was clear: “purely commercial advertising” is not protected by the Constitution.
Since then, the Supreme Court’s absolutist position with regard to commercial speech has moderated. Courts now regularly assess the value of commercial speech in arenas such as false or misleading product claims.
Lately, Cohen notes, corporations have begun pressing equal protection for advertising under the First Amendment. The result would be that advertisements would be afforded the same protections as political speech.
Highly recommended.
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