Today in 1942: SCOTUS rules that the First Amendment doesn’t protect commercial speech

April 13, 2012

Today in Legal HistoryOn January 21, 2010, the Supreme Court decided Citizens United v. FEC, an unpopular decision that introduced broad new First Amendment protections against government restrictions of political expenditures by corporations and unions.

But, the public doesn’t typically get upset when the Supreme Court expands rights granted under the Constitution.

So why was this decision so massively unpopular?

To answer this question, it’s necessary to look at another vein of First Amendment jurisprudence: commercial speech.

The first case that ever dealt with commercial speech under the First Amendment was Valentine v. Chrestensen, decided 70 years ago today.

In Valentine, the Supreme Court held that commercial speech was not entitled to First Amendment protections.

The facts of the case dealt with F. J. Chrestensen, who owned a former U.S. Navy submarine which he exhibited for profit.

Chrestensen distributed handbills to promote his exhibit, which was open to the public provided they paid a stated admission fee.

New York City Police Commissioner Lewis J. Valentine informed Chrestensen that, under state law, he could not distribute the handbills bearing the commercial or business advertising matter, and that he could only distribute handbills devoted solely to “information, or a public protest.”

Chrestensen remade his handbills, removing the admission fee on the front, and adding, on the other side, a protest against “the action of the City Dock Department in refusing [Chrestensen] wharfage facilities at a city pier for the exhibition of his submarine.”

After reviewing the revised handbill, Valentine advised Chrestensen that, unless the handbill contained only the protest information, it would violate state law and he would “be restrained.”

Chrestensen printed the handbill regardless, and he was “restrained” by the police.

Chrestensen challenged the law in court, and the Supreme Court eventually heard the case.

As mentioned above, the Court found against Chrestensen.

In making this decision, the Court distinguished between speech that is of the public interest, and what is for private profit.

Of course, people familiar with how the First Amendment currently applies to commercial speech know this isn’t the law anymore.

The Court kept this prohibition in place in large part until 1976’s Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, which overturned Valentine.

Currently, commercial speech receives some protection under the First Amendment, subject to a four-part test laid out in 1980’s Central Hudson Gas & Electric Corp. v. Public Service Commission.

Still, though it now receives some level of First Amendment protection, commercial speech is regarded differently by the courts than other speech – namely, political speech.

Why?

Because commercial speech is motivated by a desire for profit.

Wouldn’t nearly all corporate speech – including political speech – also be motivated by a desire for profit, since (for profit) corporations operate solely for the purposes of growth and profit?

Considering the expansive rights given to corporate political speech, the Court’s ruling in Citizens United obviously did not espouse this view.

Whether the Citizens United majority actually made this connection is unclear, but it’s likely that if they did, the ruling may serve as sufficient precedent to strike down any and all commercial speech restrictions still in existence.

This possibility contrasted with the Court’s ruling in Valentine v. Chrestensen on April 13, 1942 illustrates just how much Court jurisprudence can change in 70 years’ time.