Topic: Does the First Amendment protect advertisements? "Commercial speech," also known as advertising, is protected by the 1st Amendment of the U.S. Constitution. This type of speech enjoys somewhat less 1st Amendment protection from governmental encroac

Brandishing_the_First_Amendment_Commercial_Express1.pdf

Home >Social Science homework help >Topic: Does the First Amendment protect advertisements? "Commercial speech," also known as advertising, is protected by the 1st Amendment of the U.S. Constitution. This type of speech enjoys somewhat less 1st Amendment protection from governmental encroac

introduction

The Problem of Commercial Expression

[P]rotection of commercial speech, particularly in robust form, is a recent occurrence.

—Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint

In 2009 Advertising Age reported that advertising and marketing were taking a “beating” in Washington.1 Several legislative proposals that would either directly or indirectly threaten to put more limits on the industry were receiv- ing serious attention in Washington. Marketing folk opposed these proposals because they wanted “an unencumbered advertising and marketing environ- ment.”2 Despite this new interest in regulation, the marketing environment is likely to remain relatively unencumbered for some time to come because ef- forts to restrain it are likely to encounter a formidable obstacle in the courts—the First Amendment. Although the situation is little known outside of the litigation circles involved, industry has been engaged for the last forty years or so in strategic litigation raising First Amendment challenges to gov- ernmental attempts to regulate commercial speech. These efforts have met with some success because, although they did not always result in a win in a particular case, cumulatively they have successfully changed judicial and public attitudes toward governmental regulation of commercial speech.

Although for the ‹rst 200 years or so of this country’s existence most ob- servers took it for granted that the government could regulate commercial speech as a function of its power to regulate commerce, by the mid-1970s this was no longer obviously the case. Regulation had gotten a bad name, and the

Piety, Tamara R.. Brandishing the First Amendment : Commercial Expression in America, University of Michigan Press, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/empire-ebooks/detail.action?docID=3415041. Created from empire-ebooks on 2018-11-05 17:58:10.

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marketplace was increasingly trusted to take care of many problems formerly thought to be the preserve of government.

After the events of the last couple of decades however, regulation is start- ing to look good again. We have seen the spectacular failure of some of the world’s largest companies (e.g., Enron and AIG); the discovery of widespread corruption and incompetence of private contractors like Halliburton and Blackwater in the conduct of two wars; repeated shocks in the ‹nancial and credit markets; the mining accidents and the explosion of the Deepwater Horizon oil drilling rig in which inadequate regulatory oversight is alleged to have played a role; and a seemingly endless stream of news about recalled cars, tainted food, children’s toys contaminated with lead, poisoned dog food, and heavily advertised drugs removed from the market after wide- spread use revealed more dangers than their manufacturers disclosed.

All these events have prompted calls for regulatory reform. However, the foundation laid by industry through strategic litigation during the period of relative regulatory inertia may make it very dif‹cult for government to re- assert control. This litigation around commercial speech and the rights of businesses to engage in protected expression have made an argument seem natural and inevitable that only ‹fty years or so ago would have seem ab- surd—that commercial speech is entitled to full First Amendment protection.

Beginning in 1976 and then accelerating into the early part of the new cen- tury, courts have been increasingly willing to entertain arguments that gov- ernmental attempts to regulate commercial speech violate the First Amend- ment. This is a disturbing development, because if the government cannot regulate commercial speech, it cannot regulate commerce—period.3

Marketing is big business, perhaps one of the biggest businesses in the United States. According to one estimate, it generates an annual $6 trillion in economic activity.4 But all this economic activity may come at a steep price. Marketing has been implicated in virtually every major news story of the past few years—spiraling health care costs, spectacular corporate meltdowns like Enron and AIG, ‹nancial reform, the mortgage crisis, tainted foods, environ- mental safety, global warming, increasing childhood obesity, and many oth- ers. Sometimes it has played a central role in creating or exacerbating a cri- sis, sometimes only a supporting one. But it is always a part of the problem. Although marketing practices are regulated in a number of ways, enforce-

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ment has often been uneven. It is becoming obvious that plugging gaps and greater oversight are long overdue.

The realization that more regulation is in order is at odds with the in- creased willingness of the courts to grant commercial speech (and commercial speakers) greater First Amendment protection from regulation. That judicial willingness is the product of several decades during which industry has en- gaged in strategic litigation, brandishing the First Amendment as a means of fending off regulatory efforts of all types—for cigarette labels, the marketing of junk food to children, disclosure rules on ‹nancial instruments, do-not-call registries, pharmaceutical advertising, and many other regulations. This is ex- tremely signi‹cant because the First Amendment can be a legal trump card. Ever since the Supreme Court proclaimed in Marbury v. Madison5 that courts have the power to overturn acts of Congress or of the executive branch on the grounds that they are unconstitutional, a constitutional defense has become a potential game ender, particularly in the hands of a wealthy and powerful lit- igant. Any renewed efforts by Congress or by federal agencies to regulate commercial expression could be struck down by a Supreme Court sympa- thetic to calls for an “unencumbered” marketing environment.

This is not idle speculation. Several individual members of the Supreme Court have already signaled their belief that commercial speech ought to en- joy more protection than it currently does.6 In 2010 the Court as a body ren- dered a decision in Citizens United v. Federal Election Commission7 that strongly suggests that the majority of the Court favors fewer restrictions on commercial speech. In one of the most aggressive examples of judicial ac- tivism in recent times, the Court af‹rmatively reached out to decide the Citi- zens United case and overruled earlier precedents that limited expenditures by corporations in elections.8 Central to the reasoning in the majority opin- ion in Citizens United is the rhetorical framing of corporations as “citizens” whose participation in political speech should not be limited because of their corporate status.

Citizens United was greeted with widespread public criticism.9 It may well have the pernicious effects on elections that its critics predict,10 but its most serious and far-reaching implications are more likely to be its effect on the regulation of commercial speech.11 At present the commercial speech that most affects the public welfare is, by and large, issued by large, multinational

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corporations. Citizens United, by framing such corporations as citizens with distinct rights of expression, provides ammunition to collapse the dis- tinction between commercial speech, which currently only has limited con- stitutional protection, and protected political or artistic expression, which enjoys heightened protection. Such a collapse would imperil existing con- sumer protection legislation and strangle in their infancy any efforts to as- sert greater regulatory supervision over critical industries like banking, pharmaceuticals, insurance, and many others. The connections between the Citizens United case and more First Amendment protection for com- mercial speech may not be obvious. To better understand why Citizens United may prove threatening to our ability to regulate commerce, not just to limit corporate participation in politics, we must go back a few years to another case, one that, like Citizens United, the Supreme Court reached out for but that, unlike Citizens United, the Court ultimately did not de- cide: Nike v. Kasky.

In 1996, Phil Knight, CEO of Nike, faced a problem. His company had been the undisputed leader in the athletic apparel market, with annual rev- enues in the billions. Hundreds of professional and college athletes wore Nike clothing and gear under exclusive endorsement contracts. Yet all was not well. The company had been the subject of a series of exposés about its labor practices. Various groups charged that workers making Nike products in factories in Southeast Asia were working brutal hours for wages of ap- proximately $40 a month. They alleged that Nike’s workers were exposed to unsafe levels of toxic chemicals like toluene and subjected to regular physi- cal, psychological, and sexual abuse. In 1997, Bob Herbert of the New York Times wrote a column criticizing Nike for what he called its “abusive” labor practices.12

These charges hurt Nike’s public image, endangering not only its sales but also its stock price. As some student groups began calling for boycotts of Nike on college campuses, analysts speculated about how these develop- ments would affect the company’s endorsement deals and its market share. Nike responded to the crisis with a concerted public relations effort. Its rep- resentatives sent letters to the editors of major newspapers defending Nike’s labor practices. It also sent letters to organizations like the YWCA and to col- lege presidents and athletic directors. It issued press releases about the issue and posted them on its website. At a public event, CEO Knight claimed that

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the air in the factories of many of Nike’s contractors was cleaner than that in Los Angeles. Nike even funded a “fact-‹nding tour” of its own overseas op- erations. The tour was put together by a PR ‹rm and led by former UN am- bassador Andrew Young. At a press conference afterward, Young reported that although Nike could still do better, it was basically doing a good job with improving the conditions for the workers who made its products. In many of these communications, Nike made speci‹c, factual claims about its labor practices (e.g., that workers received free lunches)—claims that could be checked. Apparently, some of these claims were not true.

Marc Kasky, a California consumer activist, read Nike’s claims and got angry. He believed that many of Nike’s statements were misleading (at best) and maybe knowingly false. So, although Kasky admitted he had never pur- chased a pair of Nike shoes himself, he sued Nike in a California court for vi- olations of California’s unfair trade practices and unfair competition laws, as well as for fraud and deceit. Kasky claimed he was suing on behalf of the con- sumers of California. He could do this because, at the time, California law al- lowed any citizen to sue as a private attorney general—in other words, to sue on behalf of all of the citizens of California—for an injury to the public.13

Nike responded to Kasky’s suit with a demurrer, the legal equivalent of saying “So what?” By ‹ling a demurrer, Nike was arguing that even if every- thing Kasky said was true—including his claim that Nike had engaged in fraud and deceit—those statements could not be the basis of a legal claim for relief, because the allegedly false statements were protected by the First Amendment. It is worth repeating this defense to underscore its audacity: Nike argued that Kasky’s claim for fraud and deceit did not state a cause of action because the speech was protected by the First Amendment.

This is a bold assertion—that the First Amendment insulates fraud. It is important to highlight this aspect of the suit because supporters of more pro- tection for commercial speech, when faced with objections that such protec- tion might insulate more fraud, respond that “of course” the First Amend- ment does not protect fraud. Nike’s response to Kasky’s lawsuit illustrates the emptiness of those reassurances.

However, what was arguably more shocking than Nike’s claim of a First Amendment defense was that the trial court agreed with Nike and dismissed Kasky’s suit. A California court of appeals af‹rmed. Only when the case reached the California Supreme Court was Nike’s argument subjected to

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closer scrutiny and rejected. The California Supreme Court found that some of Nike’s statements appeared to be commercial speech and, as such, were not entitled to full First Amendment protection in the ‹rst place, let alone in- sulation from a fraud claim.

Pursuant to the commercial speech doctrine, commercial speech is not en- titled to any protection at all unless it is true. Therefore, if any of Nike’s con- tested statements were “commercial speech,” then their truth or falsity mat- tered. Kasky claimed that some of Nike’s statements were false and that Nike’s management knew they were false. Pursuant to the doctrine, the First Amendment does not protect false commercial speech. Since the case had been dismissed prior to any discovery, it was possible, the majority wrote, that evidence produced through discovery would prove Kasky’s claims had merit. Over some vigorous dissents, the majority held that, because some of the speech at issue in the case appeared to be commercial speech, the lower courts had erred in dismissing the case and that Kasky was entitled to go for- ward with discovery. This was bad news for Nike because it meant the com- pany would have to turn over some of its internal documents about the con- ditions in its factories to Kasky. Anything produced to Kasky through discovery was likely to become a matter of public knowledge and possibly lead to more public relations problems.

Rather than submit to discovery, Nike chose to ask the Supreme Court of the United States to review its case. It wanted the Court to reinstate the trial court’s dismissal. The Supreme Court accepted the case for review and heard oral argument. It was one of the most closely watched cases of that term, be- cause Nike argued for more than just a resolution of its dispute with Kasky. It sought a de‹nitive opinion from the Supreme Court that statements such as those it had made in defense of its labor practices were fully protected speech under the First Amendment.

At stake was whether a company could be held legally accountable for the accuracy of its statements about its labor, environmental, or other prac- tices. If the Court’s answer was that corporations could not be held account- able for these statements, it would be a green light for major corporations to continue their carefully massaged public relations campaigns regarding social responsibility practices, without fear of having those campaigns later be a ba- sis for liability if some part of them turned out to be untrue. If Nike could get a ruling that all such speech was entitled to a constitutional shield, it would

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ensure that the advertising and marketing environment would remain “un- encumbered.” The commercial bene‹ts of being free to engage in promo- tional activities unfettered by any accountability for the accuracy of those representations are obvious. What Nike tried to obtain was the freedom to is- sue whatever speech it deemed was in its best interest, even if some of its statements were false and even if the company (or some of its employees) knew they were false.14 If, however, the Court ruled in favor of Kasky, com- panies issuing corporate social responsibility reports—press releases about is- sues like their labor, environmental, and human rights practices—could no longer leave the content of such statements to the marketing and public rela- tions departments. Instead, they would have to make sure their statements were accurate, or they would face the possibility of legal liability.

Thus, in its appeal to the Supreme Court, Nike argued that none of the speech in question was commercial speech, rather, it was all speech fully pro- tected by the First Amendment. Because Nike’s statements about its labor practices had been issued in a public relations format and contained argu- ments (or, more accurately, references to arguments) about globalization, Nike argued that these statements constituted speech about matters of public concern and therefore ought to be protected from fraud claims to the same extent as political speech, which is largely not regulatable for its truth or fal- sity. Nike claimed it should be entitled to contribute what it characterized as valuable information to the debate about globalization, a matter of public concern. (Note that Justice Kennedy’s majority opinion in Citizens United made this same argument with respect to his assertion that corporations ought to be able to contribute to the political debates of the day on an equal basis.) Of course, arguing that knowing falsehoods ought to be protected by the First Amendment is not a terribly attractive position.

Perhaps with the fraud issue in mind, Nike had a fallback position. The company’s lawyers argued in the alternative that even if some of its state- ments were commercial speech and thus testable for their truth, judicial re- view of those statements should be subject to strict scrutiny review under the actual malice standard of New York Times v. Sullivan.15 Under the Sullivan test, plaintiffs like Kasky must show that a speaker’s false statements were made with actual malice.16 This standard was adopted to prevent the “chill- ing” of debate thought to result from the specter of liability for even honest mistakes. Nike argued that this specter of liability would lead it to refuse to

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issue corporate social responsibility statements or to offer its opinion on is- sues of public concern, thereby impoverishing the public debate. It asserted that the actual malice standard was necessary to ensure “balance” in debate on matters of public concern.17 The company claimed that Kasky’s complaint had not alleged facts or claims suf‹cient to meet the Sullivan standard and therefore that the case should be dismissed as inadequately pleaded. These arguments turned out to be entirely without merit. There was little evidence that the case had chilled Nike’s public relations efforts or social responsibil- ity reporting except to the extent that it was posturing for the pending case. More important, since so many of Kasky’s claims were later corroborated by some of Nike’s own statements, it is hard to argue that Nike had contributed much to the public debate beyond obfuscation.18

Had the Court accepted this argument, it would have presented Kasky with an interesting challenge on remand. It might be easy to prove that cer- tain statements were false, but how would Kasky prove that these statements, promotional statements that Nike made about itself and that were intended to enhance its own image and bottom line, were made with “actual mal- ice”?19 The argument did not make sense. The New York Times test did not ‹t Kasky’s case, because it was designed for the situation where a defendant makes false statements about someone else, statements that the defendant knows to be false and that are made with the intent to harm. Nike’s state- ments—whether false or not—were intended to rehabilitate Nike’s public im- age, not to harm it. So Nike’s argument is best understood as a request for the Court to limit liability to knowing misstatements—in other words, to inten- tional torts. And notwithstanding Nike’s suggestion to the contrary, Kasky had already pleaded an intentional tort when he included a count for fraud and deceit.20

As it turned out however, Kasky and the lower courts were spared the le- gal gymnastics of attempting to apply the Sullivan standard to his case. To the surprise of all and the dismay of many,21 the Court abruptly dismissed Nike, announcing that certiorari had been “improvidently granted.” Some observers had thought that the Nike case would break new ground in the commercial speech doctrine. Perhaps the Court would even, as some had urged, set the doctrine aside altogether and require that commercial speech be protected to the same extent as political speech.22 But it was not to be. The dismissal meant that the California court’s decision would be reinstated and

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that the case would be sent back to the trial court to proceed to discovery. Facing the prospect of protracted discovery and the potential for more pub- lic relations nightmares, Nike settled.

The Court’s about-face was disappointing to many supporters of com- mercial speech. They had had reason to be optimistic that the issue would be decided in their favor. But even though the dismissal itself was a disappoint- ment for commercial speech’s supporters, the opinions issued with the dis- missal contained reasons for optimism. The order dismissing Nike included dissenting and concurring opinions, all of which appeared to accept many of Nike’s characterizations of the commercial speech issues. This suggested that the Court was indeed poised to expand First Amendment protection for com- mercial expression—just not with this case. So the issues raised by the case remained unsettled.

Scope of Corporations’ First Amendment Rights

One of those issues was whether a corporation enjoys the same First Amend- ment rights as a human being. Nike had argued that the corporation was, for First Amendment purposes, a speaker just like any other speaker and there- fore entitled to defend itself against criticism. Nike framed the dispute as one of simple fairness. Without protection, it would be left to the mercy of its critics, with no way to respond, and an important “perspective”—Nike’s per- spective—on a matter of public concern would be lost to the public. If Nike were just a person on a soapbox in the public square, this claim might have some force. However, this argument overlooked some important facts.

Nike was not powerless to air its views. Indeed, until the controversy over its labor practices had erupted, Nike had largely controlled its public image through spending millions, if not billions, of dollars to mold public opinion about the company and its products. The negative reports were only a small portion of the speech available to the public about Nike. Moreover, the corporation’s critics did not have millions to spend to investigate Nike or to publicize the results. Nor did they have a pro‹t motive directly related to pursuing investigation of Nike. The scales seemed already weighted heavily in Nike’s favor. In addition, “balance” in the discussion of public concerns hardly seems to require insulation from liability for false statements, particu- larly false statements made in connection with commerce.23

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Then came Citizens United. In Citizens United, the Supreme Court ap- peared to suggest that speech by a corporation is entitled to the same protec- tion as speech by a human being and that distinctions between speakers on the basis of corporate status are untenable. If the Court extends this position to commercial speech, it would imperil the constitutional status of a great deal of regulation of commerce.

Commercial speech has enormous and often deleterious effects on the public welfare. It involves costs that are likely to increase if governmental ef- forts at control are further limited. It ought to be fairly uncontroversial that false advertising is capable of causing widespread social harms and that pro- tecting the public against such harms is a legitimate role of the government. Yet Nike, like most proponents of freedom for commercial expression, seemed to feel that all this promotional activity is self-evidently valuable to the public—so valuable that any harm that might arise from false speech would be trivial in comparison to the violence done to the principles of free- dom for expression if it is regulated. This is a deeply troubling line of argu- ment, because a great deal of the regulation of commerce could be framed as “speech” and much of government’s power to regulate any number of social issues ›ows through the constitutional power granted to Congress in the Commerce clause.24 Although the Supreme Court thought in 1978 that it was obvious that the government could regulate a variety of commercial commu- nications “without offending the First Amendment”25 and that “the State does not lose its power to regulate commercial activity deemed harmful to the public simply because speech is a component of that activity,”26 it is not clear that the Roberts Court would come to the same conclusion.

The corporate misconduct of the last few decades suggests that there is little reason to be sanguine about the bene‹ts of unencumbered commercial expression and a good deal of reason to be concerned. If there are social harms attributable to commercial speech, the ability to marshal governmen- tal resources to combat those harms through the regulation of false commer- cial speech is critical. Expansive protection for commercial speech is likely to be bad for consumers, bad for the press, bad for the economy, and ultimately, perhaps, bad for democracy.

The role of commercial expression in society has continued to grow. Some of the world’s most powerful and (it is worth noting) global entities are making arguments similar to Nike’s, and they are doing so in a variety of

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contexts. Global corporations (e.g., BP, Altria, P‹zer, and Microsoft), indus- try trade groups (e.g., the Business Roundtable and the Association of Amer- ican Advertisers), and think tanks supported by industry have been engaged in a campaign to convince the courts that commercial expression should be afforded more protection under the First Amendment.27 If in›uence and re- sources are reliable predictors of outcomes, they will probably get it.

Often, the arguments in favor of protecting commercial speech sound as if they are premised on some idea that it ought to be protected because of the speaker’s interest in speaking. That is indeed the conventional understanding of who and what is protected by the First Amendment—the speaker on a soapbox, the artist, the dissident, the person who wants to express him- or herself. But what is distinctive about the First Amendment protection ex- tended to commercial speech in the creation of the commercial speech doc- trine is that it was created in order to protect the listener’s—that is to say con- sumer’s—interests. Protecting commercial speech in order to protect the commercial speaker’s right to speak would turn the doctrine on its head. It would also entail treating large corporations as if they were entities with in- terests in self-expression. In other words, it means treating corporations as if they were human beings. (Although individuals, sole proprietorships, part- nerships, and other forms of business organization can also engage in com- mercial speech, the principal source of commercial communication today is the corporation.)

The push to treat corporations like human beings for purposes of free- dom of expression is a global trend.28 This is not surprising, since many of the world’s largest companies, such as Unilever, operate globally. They would like an “unencumbered” marketing environment worldwide. In the Euro- pean Union, for example, corporations have argued, sometimes successfully, that restrictions on advertising violate the right of freedom of expression set forth in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.29 Given that many European countries presently have laws regulating commercial advertising that are signi‹cantly more re- strictive than those in the United States,30 if this trend continues, it will even- tually pose a threat to the continued viability of those laws.

The question is this: if freedom of expression is a human right, why should corporations have human rights? Treating for-pro‹t corporations as if they were natural persons undermines the notion that human beings are

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ends in themselves.31 Nevertheless, claiming that a corporation is a “citizen” with expressive rights is a move with enormous rhetorical power. By claim- ing expressive rights, corporations invoke cherished notions of autonomy, freedom, and fair play, which, if applied without consideration of the real rather than the metaphorical context, could undermine the very basis for ex- tending special protection to persons in the ‹rst place—the notion that hu- man beings are entitled to unique moral consideration.

While it is by no means a foregone conclusion that the public interest and corporate interests will always be at odds, determining when there is a con- vergence should be in the hands of the electorate and the legislature, not the boards of directors and managers of the world’s largest corporations. By their sheer size, these corporations are capable of having an immense impact on public welfare. Yet the public does not elect their boards or have any legal right of input or oversight of their actions. Unless we decline the invitation to offer full First Amendment protection to their speech, that power will be dif‹cult to restrain.

What follows is an in-depth look at marketing practices in America and industry’s use of the First Amendment as a legal weapon. I offer close-up in- spection of what advertising does, how it works, what marketing researchers are doing and what they hope to accomplish, why knowledge of advertising’s manipulative effects is not an effective protection against it, why the corpo- ration is not a person just like any other, and how the ethos of marketing and public relations has in‹ltrated the communications and political environment to the detriment of our ability to obtain reliable information about every- thing from the most mundane consumer purchases to some of the most press- ing issues of the day. It is a sustained argument for why the Supreme Court ought to reject arguments for full First Amendment protection for commer- cial speech.

This book’s principal policy recommendation is a conservative one: do not extend strict scrutiny review to the commercial speech doctrine. In addi- tion, I offer a rationale for expanding the de‹nition of “commercial speech” to include everything that for-pro‹t entities say, because no matter how it ap- pears, no matter what communicative form it assumes, communications by for-pro‹t entities are always and essentially promotional and hence “com- mercial,” because for-pro‹t corporations have no other purpose for being under the law (at least in the United States under current law). This analysis

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also provides a stronger base from which to argue that Citizens United is fun- damentally misguided in reifying the corporate person and potentially dan- gerous in permitting expansive participation in our electoral processes by these profoundly undemocratic, unaccountable, and, in some cases, foreign entities. Pursuant to this second recommendation, I often use the term com- mercial expression to encompass a broader spectrum of speech than the com- mercial speech doctrine is understood to cover. However, when speaking of something other than the doctrine itself, I use the terms interchangeably. The Supreme Court’s legitimacy is always most contested when it is acting in its countermajoritarian capacity to strike down legislation or to rule against an act of the executive branch on the grounds of unconstitutionality. That power seems an important and necessary corrective to the specter of an un- conscionable tyranny of the majority over a minority.32 But when it is in- voked on behalf of the powerful, it undermines democracy and turns the Court into the “enforcer” for an unelected and unaccountable tyrant.

The book is organized into three parts. Part I deals with the applicable le- gal doctrines, offers a survey of the scope of commercial expression as broadly de‹ned, and reviews the various interests the First Amendment is usually thought to protect. These interests break down into (roughly) four basic concerns: (1) advancing individual autonomy, dignity, or self-expres- sion; (2) promoting truth; (3) protecting democratic values or processes; and (4) supporting social and political stability.

Although these concerns are interrelated, they do not perfectly overlap. As with all issues of constitutional law, protection of one value often seems to be in tension with the preservation of another value. Nevertheless, to bet- ter explore the impact of commercial expression and whether offering it more protection would further any of the interests served by the First Amendment, it is useful to break out each category. So the subsequent chap- ters, in parts II and III of the book, discuss the ways in which commercial ex- pression affects these four groups of interests. Part II deals with protection of individual autonomy and truth, and examines why protecting commercial expression does not advance human beings’ autonomy and shows that a cor- poration has no autonomy interests. Part III examines the concerns commer- cial expression raise with respect to the values of democracy and stability and argues that unfettered commercial expression both undermines democracy and contributes to social and economic instability.

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Of course, it is not possible to answer every question or to anticipate every conceivable application of these suggestions. This is already an ambi- tious project, and I do not propose to expand its scope by attempting to an- ticipate every objection. As others have argued, commercial expression is not one problem but many. Those problems defy a unitary response. However, it seems that the time has come to reevaluate our stance on corporations and commercial expression. No doubt there will be dif‹cult cases at the margins. And, to paraphrase Stewart Brand, the opinions stated here are “strongly stated and loosely held,”33 and so I am prepared to revise them in light of more evidence. However, at present the evidence is against more protection for commercial expression. By attempting to de‹ne appropriate parameters for commercial expression, we may spur useful discussions about course cor- rections required to continue to protect other, noncommercial values and to do so in a manner consistent with democratic principles.

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