Rethinking Valentine v. Chrestensen

Valentine v. Chrestensen was a landmark 1942 Supreme Court ruling declaring that the Constitution does not protect commercial speech. This precedent has allowed Congress and the states to pass a variety of laws substantially impeding free speech and free association, where such freedom is used for “merely commercial” ends.

Luckily, the broad doctrine of Valentine has been revised, but a substantial onus still exists on commercial speech, which remains less protected than other speech. It’s time to revisit this bifurcation of rights.

To begin, the text of the amendment makes no distinction between different types of speech. It reads simply: “Congress [extended to the states by the 14th amendment] shall make no law… abridging the freedom of speech, or of the press.” The amendment is not content-specific. It does not create levels of speech.

Further, such different treatment is difficult to justify on any non-textual grounds. From a consequentialist perspective, there is little reason to think that free speech is more important in a non-commercial context than in a commercial one. Political speech is just as prone to error as commercial speech. And commercial speech has as much competition through a marketplace of ideas as does political or social speech; if an advertiser is lying, his customers will turn to other products. Moreover, commercial speech has an additional safeguard: the tort system. An advertiser making false claims about her product can be sued for fraud – but a protestor making false claims about the WTO cannot.

And, lastly, there is no justification for bifurcating our respect for free speech on moral grounds. As Robert Nozick famously argued, rights apply the same at every level. The moral side constraints that bind my actions bind them regardless of context or intent. If I may not restrict your speech about politics (by, say, disallowing covert political messages unless you disclose which candidate they would support), then I may not restrict your speech about products (by, say, disallowing product placement unless you disclose who paid for it).