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62 Iowa L. Rev. 1 (1976-1977)
Commercial Speech: A Problem in the Theory of Freedom

handle is hein.journals/ilr62 and id is 15 raw text is: COMMERCIAL SPEECH: A PROBLEM IN THE THEORY OF FREEDOM C. Edwin Baker* Since the Supreme Court's 1942 decision' denying first amendment protection to the distribution of a commercial advertising handbill, the denial of protection to commercial speech has been a major anomaly in first amendment theory.2 The commercial speech exception has continually eluded theoretical justification,3 as well as precise definition.4 Even if * Assistant Professor of Law, University of Oregon. B.A., Stanford University, 1969; J.D., Yale University, 1972. I thank Professor Henry Steiner for his helpful criticisms of an earlier draft and Dr. Yasmeen Bhimjee for suggesting several of the illustrations used in this Article. 1. Valentine v. Chrestensen, 316 U.S. 52 (1942). The brief opinion in Chrestensen sustained a New York City ordinance prohibiting distribution of commercial and business .advertising matter in the streets and other public places. Id. at 53-55. The ordinance had been invoked to prevent respondent Chrestensen's distribution of handbill advertisements soliciting customers to tour a submarine he had opened to the public for an admission fee. Id. at 53. After Chrestensen's initial attempts to advertise were frustrated by the city ordinance, he changed his advertising handbill so that the desired commercial message was printed on one side, with the reverse side carrying a protest against the city's denial of permission to dock his exhibit at a city pier. Id. In resolving the question of whether the application of the ordinance to the respondent's activity constituted an unconstitutional abridgment of freedom of expression, the Court remarked: This court has unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in these public thoroughfares. We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertis- ing. Id. at 54 (emphasis added). Thus, the Court held that commercial speech was beyond the ambit of first amendment protection and, therefore, subject to governmental regulation. The commercial-noncommercial distinction has continued to play a role in the courts, serving as a basis for excepting from first amendment protection a substantial body of profit-tainted expression. In a 1973 decision, Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973), the Supreme Court relied on the commercial speech doctrine in rejecting a first amendment attack on a local order prohibiting a newspaper from maintaining a sex-designated classification system in help-wanted columns for jobs covered by an anti-sex discrimination ordinance. Id. at 384-85. 2. One commentator noted that no court has undertaken to explain why commercial advertising does not deserve the title 'speech' which ennobles and protects political, social, and religious advocacy. Developments in the Law, Deceptive Advertising, 80 HARv. L. REv. 1005, 1027 (1967). See also note 146 infra. The doctrine has been under increasing criticism from both the Court and scholars. See notes 147, 148 infra. 3. See note 146 infra. 4. See note 146 infra.

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