In Justice Breyer’s dissent in Sorrell v. IMS Health, he cited United States v. Carolene Products, a Fifth Amendment due process case from 1938, for the proposition that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators.” Breyer adds, “To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial message) would work at cross-purposes with this more basic constitutional approach.”
The obvious problem, not directly addressed by Breyer, is that Carolene Products also states, in famous footnote 4, that “there may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” The Court ultimately concluded that it should stringently review legislation coming within the purview of the First Amendment. So it would seem that the lesson of Carolene Products, for the purposes of Sorrell, is that while the rational basis test applies to run-of-the-mill economic legislation, once the First Amendment is implicated heightened scrutiny applies. The Sorrell majority is therefore correct.
Breyer has an implicit response, which is that the core of the First Amendment is the protection of the “marketplace of ideas,” which reflects “the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people’s elected representatives have voted.”
So a little history. The idea that the First Amendment is primarily about supporting the democratic process goes back to the Progressive era. Before World War I, most Progressive* jurists (Learned Hand excepted) opposed constitutional protection for freedom of speech for the same reasons they opposed constitutional protections for liberty of contract–they opposed judicial interference with the popular will. Herbert Goodrich’s views reflected the dominant Progressive attitude: “The same kind of argument and the same line of thought which upholds a law which restricts a man in the contracts he may make upholds a law limiting the exercise of his tongue when the majority wills it.” As late as June 1918, Holmes told Learned Hand that free speech “stands no differently than freedom from vaccination,”–the same example he used in his famous Lochner dissent.
Most Progressives eventually came around on freedom of speech for two reasons. First, they were traumatized by President Wilson’s suppression of leftists and dissidents during World War I. Second, Zechariah Chafee and others developed a theory of free speech that differentiated it from what they thought of as the obsolete, individualist, natural-rights based liberties of the American past. Freedom of speech–unlike, say, liberty of contract, or property rights–should receive constitutional protection not because it was an inherent individual right, but because of the importance of political speech to the functioning of a democracy. It helped that Justice Brandeis, in particular, supported this theory of free speech because he thought that the more his favored Progressive causes were publicly discussed and debated, the more popular support they would garner.
So here’s the irony. Breyer cites Holmes’s Lochner dissent for the proposition that when the USSC reviews economic regulations, it resulted “in the constitutionalization of economic theories preferred by individual jurists.” But the idea, adopted by Breyer, that the core of the First Amendment is about the marketplace of ideas and enhancing democracy, and therefore does not include commercial speech, is itself a judicial construct, based on the political theories preferred by Chafee, Holmes, Brandeis and other Progressives–and undoubtedly Breyer himself.
However, the First Amendment itself says nothing about democracy promotion or the marketplace of ideas. It refers only to the “freedom of speech.” Reasonable minds can certainly disagree about what the “freedom of speech” includes, and what standards the judiciary should use in scrutinizing laws that infringe on that freedom.
But it’s a bit rich for Breyer to first accuse the Court of risking a return to an era when the Justices relied on their own ideology to interpret the Constitution, while meanwhile insisting that the First Amendment’s scope must be limited by an atextual theory of interpretation that was invented by ideologically motivated judges and legal scholars in the late 1910s and early 1920s, and that just-so-happens to be consistent with Breyer’s own ideological preferences.
*It’s tiresome to keep repeating this, but when I talk about “Progressives” in the early 20th century, I’m not talking “people who had ideological preferences that would place them comfortably on the left-liberal side of things in 2011,” but people who were ideological fellow-travelers with the Progressive movement of the Progressive era, most of whom had at least some beliefs that modern left-liberals would find absolutely appalling, and indeed disqualifying for a modern progressive. It’s annoying that modern left-liberals have decided to call themselves “progressives”, thus making it virtually impossible to talk about the original Progressives without confusion.
Bill Cyrus says:
That Breyer or anyone in the judiciary likes the Carolene decision tells me much about them, none of which is good. Why is it exactly that we haven’t been raising all manner of hell to have it overturned? Carolene is an abomination–how anyone who claims professional title of “justice” and supports it can only do so without the slightest semblance of a conscience.
June 24, 2011, 8:13 amStephen Lathrop says:
Sure, but Breyer is voicing a consensus that by Bernstein’s opinion is about 100 years old. I doubt it would be difficult to produce evidence that it goes all the way back to the founders—which would make disagreement somewhat less reasonable than Bernstein asserts it to be.
Now Bernstein, and no doubt the corporate-minded majority on the SC, want to modify that consensus, and admit commercial speech on a par with political speech. Some probably want to rule that commercial speech IS political speech. A change of that sort would join the Court’s growing jurisprudence aimed at subordinating the political agency of ordinary people, and in favor of empowering a corporate/government alliance over them.
That is the opposite of conservatism, so it is surprising that those advocating it continue to be called conservatives.
June 24, 2011, 8:13 amaarong says:
Steve:
There’s no consensus that the First Amendment is designed to protect the marketplace of ideas. There’s about five competing theories in constitutional jurisprudence: marketplace of Ideas, self-governance, self-fulfillment, free flow of information, and the promotion of tolerance.
June 24, 2011, 8:23 amDan Simon says:
I don’t think it’s fair to represent the “marketplace of ideas” justification for freedom of speech as a specifically “progressive” view. It has also appealed to social conservatives, for example, because it doesn’t impede the imposition of laws restricting non-political speech–pornography, for instance–that the public wishes to restrict in some ways. In fact, it would be more accurate to say that the “marketplace of ideas” justification for freedom of speech is generally adopted by adherents of democratic rule who respect the popular will regardless of their own ideology, and opposed by authoritarians of all stripes who wish to impose their political preferences on an unwilling populace by force.
June 24, 2011, 8:41 amDavid Bernstein says:
Add: and the idea that it’s both dangerous and unwise to trust the government with the power to determine which speech is or is not allowed to be circulated.
June 24, 2011, 8:41 amStephen Lathrop says:
I was referring not to a consensus on “marketplace of ideas,” but to a consensus on political speech being at the core of the first amendment. Of your five “competing” theories, four are obvious subsets of the political speech consensus.
Not sure what you mean by the fifth, self-fulfillment. If it were my judgment, I would suggest that self-fulfillment warrants core protection to the extent that it is intended to further the political agency of each individual. I would object to an interpretation that the objective is to get so self-fulfilled with money that you can out-compete everyone else in realizing your political objectives.
I believe the founders intended protection of freedom of speech to act as a political leveler. I think the burden is on those who want to empower commercial advantage in politics to show why that is either protected, or an improvement to be sought.
June 24, 2011, 8:42 amDavid Bernstein says:
Progressives, in context, is referring to early 20th century Progressive, not modern left-liberals. And modern conservative jurists are sometimes more enthusiastic adopters of the jurisprudence of early 20th century Progressives than are their liberal counterparts.
June 24, 2011, 8:43 amVenuto says:
“… but when I talk about “Progressives” in the early 20th century, I’m not talking “people who had ideological preferences that would place them comfortably on the left-liberal side of things in 2011,” but people who were ideological fellow-travelers with the Progressive movement of the Progressive era..”
.
Very, very vague attempt at distinction.
Specifically how do the core principles of early 20th Century Progressives differ from 2011 left-liberals ??
Is President Obama markedly different from Woodrow Wilson in core beliefs.
June 24, 2011, 9:04 amAllan says:
I would like to figure out what the original intent theorists think of the 1st amendment. Why was it put there? Prof. Kerr has given a fascinating history behind the 4th amendment’s warrant requirement.
In other words, what was the speech that the founders were protecting? Can we assume that King George did, indeed, restrict the freedom of speech? If so, how?
Was the speech they were talking about the Boston Tea Party? In that case, the speech was both political and economical.
Personally, I think that the first amendment has been taken too far, sort of like Scalia (?) said in his dissent in the funeral protest.
June 24, 2011, 9:12 amaarong says:
Self-governance is close, but not a subset of, the marketplace of ideas concept. The subtle distinction is that it’s focused on the individual. It’s more about protest and opposition than a dialogue about the greater good.
The promotion of tolerance also isn’t a subset of the marketplace of ideas. It’s not about politics, but recognizing disharmony and trying to fix it by example.
Self-fulfillment is about making one’s living or advancing one’s cause. Like self-governance, its individual-centered.
Free-flow of information is the most like the marketplace of ideas in that it’s utilitarian in nature, but it’s decidedly outside what you call the “political core of the First Amendment.” (See Virginia State Board of Pharmacists v. Virginia Citizens Council).
David: As usual, you’re 100% right. I think all of these theories sort of have that as an undertone, although it seems to me less significant in the marketplace of ideas theory (if for no other reason than Holmes has something to do with it).
June 24, 2011, 9:23 amJoe says:
Breyer quoted a 1995 opinion: “We have always been careful to distinguish commercial speech from speech at the First Amendment’s core.” O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Thomas, and Breyer, JJ., joined.
The idea that the First Amendment is primarily about supporting the democratic process goes back to the Progressive era.
It would be problematic if religious speech and so forth gets lesser protection so it’s nice that Breyer said that “the First Amendment imposes tight constraints upon government efforts to restrict, e.g., “core” political speech,” the “for example” suggesting other speech warrants “tight constraints.”
the idea, adopted by Breyer, that the core of the First Amendment is about the marketplace of ideas and enhancing democracy, and therefore does not include commercial speech
Let me first note that he is not against something merely because it is a “judicial construct,” since he realizes that judges have to construct doctrine. He is concerned with a certain type of subject matter that he believes over time was abused.
I also am not sure if he doesn’t think the “core” includes religious speech that has nothing to do about democracy as such, since he only listed political speech as a for instance.
He also notes commercial speech is still protected. It also would involve the ‘market place of ideas’ in various cases. I doubt if he doesn’t care for NYT v. Sullivan, involving a commercial advertisement.
The “market” metaphor seems ironic — it uses the freedom of the market, apparently what some “progressives” found troubling at the time, and applies it to free speech. Like Yankee Doodle, it seems an amusing turn about.
June 24, 2011, 9:24 amWade Coye says:
I really like the footnote. “Progressive” doesn’t always automatically mean left-wing liberal.
June 24, 2011, 9:44 amG.R. Mead says:
.. and which is their modus operandi — then and now — they are identified more by those methods than by distinct policies. For instance we no loger have “war” because progressives (left and right) disapprove of “war.” Instead, we have whatever is going on in Libya that we don’t call “war.” We have Iraq and Afghanistan which — while approved by both branches concerned — were still never designated “wars.” And the manhunt for terrorist brigands — we trifled with “overseas contingency operations.”
This tendency lies throughout the operation of progressive thought. Terrorism: “man-caused disaster.” Foreigners crossing our borders without our leave, no not “invasion” silly, “undocumented immigration.” We changed “militia” to the French revolutionary version: “National Guard” and thus forgot the militia’s history and full functions in the structure of our government, and invented something called “law-enforcement” to distinguish the third function instead.
Unless we get rid of the rampant fallacy of nominalism and the problem of political manipulation of language to control the limits of allowable meaning, as Orwell illustrated the dangers of — it will never end.
June 24, 2011, 9:48 amDesiderius says:
“based on the political theories preferred by Chafee, Holmes, Brandeis and other Progressives–and undoubtedly Breyer himself”
“It’s tiresome to keep repeating this, but when I talk about “Progressives” in the early 20th century, I’m not talking “people who had ideological preferences that would place them comfortably on the left-liberal side of things in 2011,” but people who were ideological fellow-travelers with the Progressive movement of the Progressive era, most of whom had at least some beliefs that modern left-liberals would find absolutely appalling, and indeed disqualifying for a modern progressive. It’s annoying that modern left-liberals have decided to call themselves “progressives”, thus making it virtually impossible to talk about the original Progressives without confusion.”
Seems like you have some doubts yourself.
Is it really so impossible to imagine peeling the Breyers of this world away from the Old Deal?
June 24, 2011, 9:51 amStephen Lathrop says:
For aarong and others, who have apparently decided to focus on “the marketplace of ideas” while ignoring references to the more historically grounded concept of political speech:
The notion of the marketplace of ideas is stranger than it appears at first glance. That’s because the posited competition in that marketplace is not between the marketers, but between the ideas themselves. It’s an extension of the unrealistic notion that consumers of produce wouldn’t pay any attention to who sells them apples, they care only about the quality of the apples, and intend to choose the best. Seen that way, the apples compete, in the judgment of the purchasers, not the store owners. It’s a childish metaphor, which doesn’t describe at all what actually happens in commerce, or in politics.
June 24, 2011, 9:57 amDebrah says:
Ha!
It’s a euphemistic feast of word salads.
June 24, 2011, 10:08 amDan the Man says:
If this were true, it is difficult to understand why trademark laws (passed using the commerce clause) are constitutional. Copyright laws have been upheld on the basis that the copyright power is specifically mentioned in article 1 sections 8 as a power of Congress, but there is no trademark clause in the constitution and the Supreme Court has specifically stated the copyright clause does not grant Congress the power to make trademark laws.
Nor could one claim that trademark laws are justified to protect consumers (a standard justification to defend laws restricting commercial speech) – in fact the obvious goal is to grant monopolies on certains words used in commercial speech. If someone is selling a fake Gucci bag and the customer buys it knowing it’s a fake Gucci bag, obviously the customer isn’t being ripped off – in fact she’s buying the bag precisely because it’s a fake Gucci bag only it’s cheaper than the real one. Yet selling the fake Gucci violates trademark laws.
So I think it’s pretty obvious the Supreme Court is just using it’s own policy preferences in saying Congress can pass trademark laws even they’re significant limitations on commercial speech.
June 24, 2011, 10:12 amMark Field says:
All modern 1A jurisprudence is a “judicial construct”. That’s because the original purpose of the 1A was to protect federalism concerns. It was Congress which was barred from passing laws; states were free to infringe on speech rights whenever and however they wanted as far as the Constitution was concerned.
Thus, any application of the 1A outside of that limit will necessarily involve “judicial constructs”, whether by Breyer or by the majority.
No less annoying than those who call themselves “conservative” despite having nothing whatsoever in common with Burke.
That said, I don’t like the term “progressive” and don’t use it to describe my own views.
June 24, 2011, 10:13 amCalderon says:
Stephen Lathrop said:
There was no consensus protecting political speech 100 years ago. Individuals were regularly punished for political speech during World War I using the “bad tendency” test. The development of First Amendment law in the middle of the 20th century embraced meaningful protections for political speech at the same time it developed protection for artistic freedoms and other non-political speech. Commercial speech protections came only shortly thereafter.
Also, if you want an argument that the founders intended to protect commercial speech as much as other speech, you can read the articles and briefs of Daniel Troy, such as http://supreme.lp.findlaw.com/supreme_court/briefs/00-596/00-596.mer.ami.aaf.pdf
June 24, 2011, 10:22 amcaptcrisis says:
The “progressives” of that era might have had some views that were “appalling” to us . . . but they still were not as bad as the “conservatives” of that era.
June 24, 2011, 10:44 amPublius The Lesser says:
I remember reading about a case in the late 19th century where a freethinker was successfully prosecuted for obscenity because he published an article arguing for changes to the rape laws in his state to make spousal rape a crime, despite the fact that the article was expressly political in nature and not the least bit titillating. Obscenity laws were also used to prosecute people advocating the legalization of birth control, and it’s not clear that 19th century courts regarded the First Amendment as providing any meaningful protections for speech at all.
June 24, 2011, 10:52 amJosh Blackman says:
Breyer made the same error in McDonald v. Chicago. With his citation to Carolene Products FN4, he totally forgot that the 2nd Amendment was an enumerated provision in the first 10 Amendments. (http://joshblackman.com/blog/?p=4754)
Perhaps to Breyer’s credit, he also referred to the “core” Second Amendment rights (as opposed to penumbral rights). It seems that even if something is enumerated in the Constitution, if it is not “core,” than FN4 does not protect it. This is just another synonym for “fundamental.”
Core rights get protection. Penumbral rights get less protection. (http://joshblackman.com/blog/?p=7400)
June 24, 2011, 11:04 amDavid Bernstein says:
What is considered “Core” and what is considered “non-core” is itself a matter of judicial ideology, leading to folks like Breyer doing the same thing they accuse the Lochner Court of doing–writing their ideology into the law. Why, for that matter, given Carolene Products, does freedom of speech get more protection than Fifth Amendment property rights, much less Contract Clause rights, which don’t even need to be “incorporated?” It doesn’t seem like a coincidence that the Warren Court gave more attention to rights liberals happened to favor, while claiming to merely be applying the bill of rights.
June 24, 2011, 11:08 amAF says:
If Breyer had argued that restrictions on commercial speech should be governed by Carolene Products deference and not by the First Amendment heightened scrutiny because the First Amendment only protects the marketplace of ideas, that would have been a perfectly coherent position, though inconsistent with modern First Amendment jurisprudence. But that is not Breyer’s argument.
Breyer’s argument, instead, is that though a heightened First Amendment scrutiny may be appropriate “when the government directly restricts commercial speech,” (emphasis added), the Court has not (and should not) applied such a standard “to ordinary commercial or regulatory legislation that affects speech in less direct ways.” This is not because the Frist Amendment only protects the marketplace of ideas, but rather because most commercial activity is carried out through the exchange of information, or speech. As Bernstein points out, “[r]easonable minds can certainly disagree about what the “freedom of speech” includes.” Breyer’s position is that it the freedom of speech has little bearing on laws that do not directly restrict, bure merely affect, commercial speech.
Interestingly, the majority doesn’t exactly disagree with this. The basic disagreement between the majority and the Breyer appears to be over the proper characterization of the law. The majority contends that the law generally allows for the disclosure of prescriber information, but restricts its use for marketing purposes — thus making it esso narrowly targeted at speech that it is akin to a law “prohibiting trade magazines from purchasing or using ink.” The majority notes that “[i]f Vermont’s statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position.” Breyer, on the other hand, believes that this is exactly what the law does; he argues that the exceptions in the statute “are narrow and concern common and often essential uses of prescription data” and that “[t]he record contains no evidence that prescriber-identifying data is widely disseminated.”
June 24, 2011, 11:17 amStephen Lathrop says:
This Daniel Troy?:
If I wanted an expert opinion on what the founders said (not “intended”—there is no such thing as an expert opinion on what the founders intended), why would I choose that guy instead of an historian?
I presume you are a lawyer. If the opposition had a historical question to prove, and offered that sort of witness as an expert, would you be quaking in your boots—or laughing up your sleeve?
June 24, 2011, 11:19 amRepeal 16-17 says:
Alito was the dissenter in that case (Snyder v. Phelps).
How far do you believe the First Amendment should be taken?
June 24, 2011, 11:23 amDavid Bernstein says:
It seems to me he is arguing both, in the alternative.
June 24, 2011, 11:29 amCalderon says:
— interesting that you dodged the main points of my post. To be blunt, you’re making a lot of historical claims about what the First Amendment was intended to accomplish meant with nothing to back those up.
As far as if the other side put up Daniel Troy as an expert, I’d neither quake in my boots nor laugh. I’d get an expert to set forth whatever position my client advocated, and discuss with my expert where Troy’s opinion was weak or strong and how best to attack it, and evaluate the evidence and opinions myself. Once that review were complete, then I might be laughing or quaking, though in my experience neither leads to good advocacy. All that said, I’m not quite sure how posting Troy’s (rather impressive) resume is supposed to denigrate him.
June 24, 2011, 11:30 amG.R. Mead says:
Too right. Like these piquant, fresh-cut greens that were served while everyone was debating the Weiner course …
Executive Order 13575 “to enhance Federal engagement with rural communities” Please, someone tell us what the heck requires every Cabinet department plus the FCC and a laundry list of other alphabet soup agencies, and what any of THIS means:
The regulatory economic “engagement” of the federal government has made such a profound difference in urban economic planning, why not capitalize on those “successes” first?
I suspect that Detroit, L.A. Chicago, Bridgeport, Baltimore, Miami , etc. etc. etc. have had all the federal “engagements” that they can stand and some barely survive it.
Fleas always leave a dying dog– are the parasites now in need of new hosts ?
June 24, 2011, 11:49 amAF says:
“It seems to me he is arguing both, in the alternative.”
I don’t think so. Breyer acknowledges that because “commercial speech including advertising has an ‘informational function’ and is not “’valueless in the marketplace of ideas’” it is subject to intermediate scrutiny. Breyer thinks that the Vermont statute is different because it “neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view, whether ideological or related to the sale of a product.” Breyer never suggests that if the statute did forbid or require speech, it would not be subject to heightened (intermediate) scrutiny under the First Amendment.
Breyer does say that in his view the Vermont law would survive intermediate scrutiny, if intermediate scrutiny applied. But his discussion about Carolene Products and about the inapplicability of heightened scrutiny is clearly based on the premise that the law does not prohibit speech.
June 24, 2011, 11:53 amDavid Bernstein says:
I misunderstood what you wrote before. OTOH, he does cite Rehnquist’s views on commercial speech from a time when Rehnquist was, to say the least, highly skeptical of the commercial speech doctrine. But I’d have to re-read the whole thing to decide whether I think Breyer grudgingly acknowledges protection of commercial speech only as precedent he doesn’t like, or whether he actually seems to endorse it.
June 24, 2011, 12:18 pmKazinski says:
Bernstein has a cite for his assertion, if you are going to make a wild supposition, you should be able to come up with at least a little bit of evidence.
I don’t see this ruling as pro-corporate, I see it as pro-consumer, the government was trying to keep true information from consumers because they thought they would make the “wrong” decision based on it.
Doesn’t it give you pause that in an earlier case the the government was outlawing price competition in advertising for prescription drugs? How anti-consumer can you get?
June 24, 2011, 12:45 pmSteve says:
This just serves to emphasize that “pro-consumer,” like “pro-family,” is a label that does more to obscure than to identify. Savvy observers may have noted that almost EVERY pro-corporate argument these days is framed in terms of wanting to help the consumer, rather than wanting to advance corporate interests. But it’s just framing.
June 24, 2011, 1:19 pmJoe says:
That’s because the original purpose of the 1A was to protect federalism concerns. It was Congress which was barred from passing laws; states were free to infringe on speech rights whenever and however they wanted as far as the Constitution was concerned.
Why were those things in particular included? Part of it is that those things are specifically important, which is why states protected them in their constitutions. And, the 1A restricts the breadth of certain federal powers that states would have no control over. It is not merely a federalist concern.
Thus, any application of the 1A outside of that limit will necessarily involve “judicial constructs”, whether by Breyer or by the majority.
The provision here is actually restricted by the 14A. If we want to be literal about it.
June 24, 2011, 1:31 pmShelbyC says:
That’s the nice thing about the free market. If I want a Big Mac more than I want $5, and McDonalds wants my $5 enough to want to make me a Big Mac, everybody wins when I buy a Big Mac. Pro-corporate, pro-consumer. Of course, if some busybody doesn’t want me to buy a Big Mac, they’re not going to frame their meddling it as ant-consumer, they’re going to frame it as ant-corporate. But it’s just framing.
June 24, 2011, 1:35 pmStephen Lathrop says:
It is not supposed to denigrate him. It is supposed to show there is nothing there to suggest any training in history, the subject on which you offered him as an expert.
As for the dodging your point stuff, what point are you making? You can hardly discuss “commercial speech” (a 20th century notion never mentioned, nor approximated, by the founders). The speech- and press-related language of the founding era, and of the run-up to the founding era, is overtly, comprehensively, redundantly, pickled in politics and religion.
Advertising there was, but not regarded by anyone as speech. Advertising was the practice of business, and a useful fiscal underpinning for the press. But freedom for advertisers to say what they wanted? Not mentioned, as far as I know. If you know of some bit of advocacy on behalf of advertiser speech freedom, by all means bring it forward. It would be noteworthy, both for its scarcity and for its novelty.
But don’t expect trivial curiosities to overturn the obvious—that when the founders talked about free speech and a free press they were talking, overwhelmingly, about politics and religion. And the politics they had in mind started with advocacy of political equality. A point that couldn’t have been more dissimilar to their ideas on the subjects of commerce and equality, or property and equality.
On the subjects of politics, free speech, and equality, it seems to me the record overflows. On the subjects of commerce, free speech, and…what?…economic liberty?…isn’t the record sparse to non-existent? Any case to the contrary is historical revisionism, and calls for powerful evidence. I don’t think you can get over that bar with anachronisms and modern ideology read back into the past.
June 24, 2011, 2:40 pmMark Field says:
I’m not quite sure I understand your second point. Restricting the breadth of federal powers IS a federalist concern.
As for the first point, yeah the state conventions identified specific concerns about the powers granted to the federal government which, the anti’s argued, might be used to infringe on state authority. But I wouldn’t say they all involved “rights” as in the modern construct of 1A jurisprudence, since part of the reason for the 1A was to permit states to maintain establishments of religion. That is, states wanted the power to control the scope of the rights, free from federal interference.
June 24, 2011, 2:55 pmCJColucci says:
It’s annoying that modern left-liberals have decided to call themselves “progressives”, thus making it virtually impossible to talk about the original Progressives without confusion.
No, it’s actually quite easy if you do two things:
1. Refer to “early twenthieth-century Progressives” and;
June 24, 2011, 3:12 pm2. When early 21st-century progressives advocate things they actually agree with that happen to correspond to things early 20th-century Progressives believed in — like food and drug safety or the Federal Trade Commission — stick to the topic and hand and don’t sneer about Woodrow Wilson, for example, being a racist.
OncologistWithALawInterest says:
Here is a question for all of your legal theorists out there. In reading the majority opinion, it appears to be far-reaching.
I am a cancer doctor (from a family of lawyers–I’m the black sheep) who speaks on occasion for pharmaceutical companies. These talks over the years have been very tightly constrained by the FDA in what I can and cannot say, and what the pharma company can and cannot say.
Based on my reading of this decision, it is reasonable to assume that the FDA regulation of this sort of speech is now considered unconstitutional barring any extremely compelling state interest (which I would have a hard time finding)? Is it now reasonable to assume that “trying to regulate medical costs” is not now a sufficient reason for the FDA to control speech?
June 24, 2011, 3:25 pmCalderon says:
Stephen Lathrop said:
If we’re taking about a legal expert, there’s no requirement that he have formal training. There are three of four other bases on which to qualify, including knowledge and experience. Troy’s writings show that he has that.
You’ve claimed that there’s some historical consensus about the First Amendment being about political speech. Yet you’ve produced no evidence of that. The actual state of constitutional and statutory law 100 years ago (a time frame you picked) shows that political speech did not receive meaningful protection. If that speech showed a “bad tendency” — such as opposing a war or the draft — the speaker could be punished with a lengthy prison term. The robust protections we have now developed in the 1950′s through the 1970′s, and all the related speech doctrines developed contemporaneously — not just political speech, but also protections for art, non-political speech, and commercial speech. In short, the claim in your first post that some consensus about political speech developed that others are trying to change by adding commercial speech is not support by the history of constitutional law.
Commericial speech is advertising, and there’s no evidence that the the founding generation excluded advertising from the protections there were willing to give other speech. This is one of the topics that Troy talks about. Nor have you produced anything to the contrary besides your ipse dixit.
June 24, 2011, 3:34 pmStephen Lathrop says:
Nope, no pause at all. Note that it was advertising that was banned, not price competition. Under that regime the drugs cost less than they do now. Consumers now pay to fund apparently counter-productive advertising. Pharmaceutical companies now seem to boost prices on older drugs that need no advertising, to raise funds to pay for gigantic advertising campaigns for new drugs they hope to turn into blockbusters. Price competition plus advertising seems to produce higher prices than price competition alone—at least for many prescription drugs.
Consumers should rely instead on their doctors for drug choices, and shop around among pharmacies for prices. That is a less expensive and more reliable way to handle the distribution of products that should only be purchased under expert guidance anyway.
It worked for decades, and has now been replaced by a system that is less consumer friendly. If I had a button I could push to go back to the old system, I would push it in a second, and expect to pay less for my prescriptions as a result.
Help me out. I thought I understood Sorrell, but not after I read that. I thought it was about data miners and doctors, and only incidentally about consumers. What is this “wrong decision” stuff. Is that what they said? Or is that a motivation you attribute?
June 24, 2011, 3:39 pmDilan Esper says:
One thing to bear in mind is that whatever theory you are operating under, there is no evidence that the First Amendment was originally understood to apply to commercial speech at all.
I support the commercial speech doctrine and most of the major cases (though I think Sorrell is wrongly decided), but then, I am not an originalist. An originalist, it seems to me, either has to adopt Bork’s form of free speech or maybe the Chaplinsky court’s enumeration of the exceptions.
June 24, 2011, 4:54 pmTanto says:
To whom exactly are you referring?
June 24, 2011, 5:16 pmTanto says:
Probably good advice. And besides, is it really any more annoying than the standard use of the term “liberal”–considering libertarians think they are the true heirs of classical liberalism?
June 24, 2011, 5:28 pmJoe says:
I’m not quite sure I understand your second point. Restricting the breadth of federal powers IS a federalist concern.
When I think “federal” in regard to the 1A, I think powers not given to the feds but left to the states like establishment of religion. I don’t really think of a restriction of something purely federal power (e.g., over territories) that states have no power over in the first place. I might be too restrictive here.
But I wouldn’t say they all involved “rights” as in the modern construct of 1A jurisprudence, since part of the reason for the 1A was to permit states to maintain establishments of religion. That is, states wanted the power to control the scope of the rights, free from federal interference.
I agree with this but that is only one aspect of the 1A. The 1A also restricted the federal government from establishments even over purely federal matters, such as Madison’s opposition of counting clergy in the census. The argument made was that religion is purely a private matter and that the federal government should not get involved; here only the feds is involved, so states couldn’t be trusted with protecting the liberty in question (as each did in some fashion).
June 24, 2011, 5:52 pmJoe says:
Interesting article in part on the “murkiness” of the protection of advertising as speech pre-1940:
“The Anti-History and Pre-History of Commercial Speech.”
by Alex Kozinski & Stuart Banner *
They thank Eugene Volokh for his help.
The reference to films not being protected (MUTUAL FILM CORPORATION v. INDUSTRIAL COMMISSION OF OHIO — 1915) is notable. Speech and the press was referenced as “freedom of opinion and its expression” … is commercial speech or advertising that? The opinion was unanimous. Were “progressives” involved?
June 24, 2011, 6:20 pmDilan Esper says:
Joe:
I think it is fair to say (you see this in the early obscenity prosecutions and Comstock Act enforcement as well) that prior to the late 1950′s, the consensus of the constitutional bar was that the First Amendment protected political protest (to the extent it protected anything at all) and that artistic expression (just like commercial advertising) was wholly unprotected. That was Bork’s view as well. The Mutual Film Corp. case would fall within that analysis.
Bear in mind, thanks to Barron v. Baltimore, there wasn’t a lot of First Amendment law at all in the 19th Century, and it was the WW1 war protest cases and the rise of American communist organizations in the 1920′s that brought us our first real First Amendment doctrines. The courts at that time, were just getting their arms around the idea that the First Amendment might protect political protest (i.e., Holmes’ Abrams dissent, Brandeis’ Whitney concurrence) and it was only after they learned to crawl that they could learn to walk.
June 24, 2011, 7:39 pmKiera Flynnm SCOTUSblog: Friday media round-up « aidsoversixty says:
[...] Hudson] by introducing a new, undefined, yet clearly stricter standard of review.” At the Volokh Conspiracy, David Bernstein examines Justice Breyer’s dissent in Sorrell, while the editorial board of [...]
June 24, 2011, 8:08 pmJoe says:
Dilan, Joseph Burstyn, Inc. v. Wilson was decided in 1952, so I don’t know about “the late 1950s.” See also, WINTERS V. PEOPLE OF STATE OF NEW YORK (1948).
I don’t know what the bar thought but artistic expression, which often has political connotations (as seen by some things targeted during WWI), sounds like a stretch to me. Again, by the 1940s, if not before, courts started to protect even books with sexual content. I don’t know if the “bar” didn’t think Shakespeare was protected. Or, discussions about birth control or social issues. Or, though it might be seen as coming under free exercise, religious expression.
I guess the appropriate thing to do would be to look at state cases and see what they did. Read a book about “speech in the forgotten years” some time back. Don’t recall much about it, but there were various cases, not just political, where speech was protected. The small number of federal cases etc., granted. Also, often judges thought only prior restraint was the main concern.
June 24, 2011, 9:27 pmPeter Gerdes says:
Note Breyers qualification to economic theories. He likely draws a distinction between technical areas where jurists shouldn’t but in and tie the hands of experts with constitutional interpratations when they don’t fully understand the field.
On the other hand any sane notion of jurisprudence requires that the judiciary use their own judgement, after all that is why we need judges to interpret the laws.
The charitable interpratation here is that Breyer thinks that judges, as the relevant experts in the effect of precedent, procedural rules and the likely way lower courts will apply their deciscions it is completely reasonable for judges to exercisce their legal expertise in rulings, e.g., refusing to decide clearly imporant constitutional questions because they judge that interfering in political questions ultimately erodes the legal system. After all someone must choose if they should decide these cases and judges are the relevant experts so it’s the best we can do.
On the other hand judges are not experts in economics so by constitutionalizing their economic judgements they are likely to carve their misconceptions in stone.
In other words it’s reasonable for judges to bind future generations on legal matters because the protections and certainty those guarantees give us (say like privacy aka sex) are valuable and the risk of judges accidentally say restricting free speech to spoken communication is small. Conversely a constitutional interpretation that said collusion by companies us free speech could quite like;y have impacts unforseen by the justices
June 25, 2011, 12:02 amDavid M. Nieporent says:
Is there evidence that it wasn’t? That commercial speech qua commercial speech was unprotected?
June 25, 2011, 3:17 amStephen Lathrop says:
You could read documents from the founding era forever. I doubt you would ever encounter any language that meant, or seemed to mean, “commercial speech.” If the concept didn’t exist, any intent to protect it must also have been absent. But by the same reasoning, any intent to rule out protection was also absent. So yes, there is evidence that commercial speech was unprotected. But there is also evidence that intent to withhold protection was absent.
Advocates now seize on that last bit to say, “See, the founders didn’t rule out protection for commercial speech, so that means it is protected, because the amendment says, etc.” Buy that if you like it. It feels to me like begging the question. It says, “Forget Nieporent’s question about what the amendment means, we win because of the amendment.”
Anyone who wants the questions actually answered, should ask them in modern terms, posing them to people who are alive now and understand the premise:
1. What protections for commercial speech serve public interests?
2. Is it wise to permit unfettered participation in the political process by commercial organizations?
June 25, 2011, 7:52 amDavid Bernstein says:
That’s not what commercial speech means. Commercial speech, in USSC doctrine, is “advertising.”
June 25, 2011, 8:12 amStephen Lathrop says:
Can you explain to me how a purely commercial entity could possibly engage in any but commercial speech? More particularly, aren’t the officers of a commercial corporation under a duty to pursue the commercial interests of their shareholders? How can anyone put any interpretation upon speech they pay for (as officers)—whatever its content, mode of delivery, or audience—except that it represents either commercial speech, or theft from the shareholders?
June 25, 2011, 2:54 pmDavid Bernstein says:
You’re missing the point. I’m not talking about semantics here, just the “commercial speech” doctrine. When the USSC talks about “commercial speech,” it doesn’t mean “speech by a commercial entity,” it means advertising. It’s a term of art, if you will.
June 25, 2011, 6:05 pmStephen Lathrop says:
Thank you for being patient with me. As you can see, I am not a lawyer. And I get that as a legal expert you are telling me the way it is, for which I am grateful.
But I don’t think this has as much to do with semantics as with reason. What has the term of art, or the practice behind it, got to do with any logical distinction?
Take a few examples. Product advertising—obvious commercial speech, right? Candidate advertising, per Citizens United—still advertising, but is it commercial speech? Lobbying—not advertising, ergo not commercial speech, because of established practice, apparently.
Yet in each instance you have a commercial entity trying to further a commercial interest via bought-and-paid-for speech—money courtesy of the shareholders. Logic ties them together. What separates them?
June 25, 2011, 6:34 pmTJ says:
A quote for your next edition of Rehabilitating Lochner:
http://www.scotusblog.com/?p=122758
David Bernstein, I think you are clearly right about how Lockner has become part of a sort of anti-canon, and that most of what modern progressives say about it is based on ignorance.
June 25, 2011, 6:35 pmDavid Bernstein says:
Precedent.
June 25, 2011, 7:16 pmDavid M. Nieporent says:
I think DB is confusing you by using the term “advertising,” which is too broad. Much pure political speech is “advertising,” after all — the seminal NY Times v. Sullivan case, for instance, involved an ad. Commercial speech — for legal purposes — is speech which does no more than propose a commercial transaction.
June 25, 2011, 8:37 pmNun says:
Thank God for precedent to deal with that pesky method of reasoning called logic.
June 26, 2011, 2:32 amIf Citizens United strives to profit thru trashing Hilary Clinton, or if MSNBC seeks to profit, finally, by advertising it’s slogan(s) ‘The Place for Lean Politics’, then each cannot be rationally viewed as only exercising penumbral commercial speech, regardless of breying on the matter, as both express political speech with commercial framing.
Calderon says:
That view would seem to include any publication of newspapers or books for profits as commercial speech, which (under current doctirnes) would give the government far greater scope for regulating their content. Moreover, categories of speech are distinguished by looking at the substance of speech rather than the speaker. Finally, shareholders can of course approve, either directly or indirectly, purely political speech by corporations.
For whatever it’s worth, several years ago there was a case out of California involving Nike that may have helped provide more doctrinal clarity on when non-advertising speech by corporations is commercial speech, but the US S Ct ultimately chose not decide it. See http://www2.law.ucla.edu/volokh/nike.htm
June 27, 2011, 9:18 amDilan Esper says:
Nobody at the time of the drafting of the First Amendment thought about “exceptions”. That’s modern doctrine.
The question is, did they think that laws that regulated advertising (which existed) would be rendered unconstitutional by the adoption of the First Amendment. And there’s no evidence they did and a lot of evidence the First Amendment was about political expression. Bork is very persuasive on this issue.
As I said, I’m not an originalist, and I’m on board for most of the commercial speech cases.
June 27, 2011, 3:21 pm