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39 Geo. Wash. L. Rev. 429 (1970-1971)
First Amendment in the Marketplace: Commercial Speech and the Values of Free Expression

handle is hein.journals/gwlr39 and id is 441 raw text is: The First Amendment in the Marketplace: Commercial Speech and the Values of Free Expression MARTIN H. REDISH* Introduction Philosophers of liberty have often phrased their arguments in support of the first amendment's protection of speech and press in the form of an analogy to the capitalistic marketplace. Thus Mr. Justice Holmes, in one of his most widely quoted passages, argued that when men have realized that time has upset many fighting faiths, they may come to believe ... that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competi- tion of the market .... That at any rate is the theory of our Constitution.' The Supreme Court has recently reaffirmed Holmes' marketplace theory,2 but the analogy has remained just that. In the actual market- place of daily commerce, the first amendment has been thought to play little, if any, role. In two opinions that are landmarks if only for their questionable analytical force,3 the Supreme Court has, for all practical purposes, * A.B., University of Pennsylvania; J.D., Harvard University. 1. Abrams v. United States, 250 U.S. 616, 630 (1919) (dissenting opinion). 2. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969): It is the purpose of the First Amendment to preserve -n uninhibited marketplace of ideas in which truth will ultimately prevail. .. 3. Breard v. City of Alexandria, 341 U.S. 622 (1951); Valentine v. Chrest- ensen, 316 U.S. 52 (1942). March 1971 Vol. 39 No. 3

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