# Amicus Curiae Brief — Greater New Orleans Broadcasting Assn., Inc. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0226%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1999 - **Citation:** 527 U.S. 173 ## Text In THE Supreme Court of the United States OCTOBER TERM, 1998 GREATER NEW ORLEANS BROADCASTING ASSOCIATION, INC., ef al., ~ Petitioners, UNITED STATES OF AMERICA, et al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit BRIEF AMICUS CURIAE OF THE AMERICAN ADVERTISING FEDERATION IN SUPPORT OF PETITIONERS Of Counsel RICHARD E. WILEY WALLACE S. SNYDER Counsel of Record President DANIEL E, Troy JEFFREY L. PERLMAN BENJAMIN B. REED WILEY, REIN & FIELDING Senior Vice President 1776 K Street, N.W. Government Affairs AMERICAN ADVERTISING Washington, D.C. 20006 FEDERATION (202) 719-7000 1101 Vermont Avenue, N.W. Counsel for Amicus Curiae Suite 500 Washington, D.C. 20005 February 25, 1999 WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001 TABLE OF CONTENTS Page INTEREST OF AMICUS CURIAB 0oo00...0....ccccccceececccoceee 1 tt FN ee Bt, TE Rian eae ne 2 PS __, RA NEA POTTS CSTE AAT Shae Ss A 3 I FULL PROTECTION OF COMMERCIAL SPEECH UNDER THE FIRST AMENDMENT IS CONSISTENT WITH THE ORIGINAL UN- DERSTANDING OF THE-FIRST AMEND- MENT AND THE PREVALENCE AND IM- PORTANCE OF ADVERTISING AT THE TIME OF THE FRAMING ................................. 5 A. Advertising Was An Integral Part of the “Press” in Colonial America .............. 6 B. The Absence of Advertising Restrictions Is Consistent With The Colonial Conception of a “Free Press” That Included Advertising... 9 1. The challenges to early Stamp Acts evi- dences the colonial conception of a “free press” including advertising... 9 2. State trade regulations restricting only unlawful products and services evidences the colonial conception of a “free press” including advertising ....................000000000..... 11 8. Common law exceptions to free commer- cial speech involving false or misleading speech evidences the colonial conception of a “free press” including advertising... 15 4. Fully protecting advertising is consistent with the Framers’ political philosophy, which equated liberty and property.......... 16 ii TABLE OF CONTENTS—Continued Il. THE PERVASIVENESS OF ADVERTISING Il. IV. AND STATE LEGISLATIVE PRACTICE AT THE TIME OF PASSAGE OF THE FOUR- TEENTH AMENDMENT ARE CONSISTENT WITH THE VIEW THAT COMMERCIAL SPEECH IS ENTITLED TO FULL FIRST AMENDMENT PROTECTION ....................---.+ A. Commercial Speech Was An Integral Part of American Life During Reconstruction .......... B. State Legislative Practice During Reconstru- tion Is Consistent With Full First Amend- ment Protections for Truthful Commercial Speech Promoting Lawful Products and i BE Le RE Rl kh i LOWER PROTECTION FOR COMMERCIAL SPEECH IS A TWENTIETH-CENTURY PHE- NOMENON THAT HAS ITS ORIGINS IN A DISENCHANTMENT WITH ECONOMIC LIBERTIES AND CONFUSION WITH ECO- NOMIC SUBSTANTIVE DUE PROCESS.......... A. The Pervasiveness of Advertising Grew in the Early Twentieth Century .............0............ B. Disenchantment with Advertising Became Apparent as a Result of Reform Movements and the Great Depression ................................ C. The Incorrect Association of Advertising and Economic Liberties Led to the Misguided Distinction Between Commercial and Non- commercial Speech .. THIS PROPOSED INTERPRETATION OF THE FIRST AMENDMENT IS NOT INCON- SISTENT WITH THIS COURT'S PRIOR PRE- CEDENT AND WILL NOT DRAMATICALLY ALTER THE FACE OF FIRST AMENDMENT IE ccaisthhachtinhtccitiienisnsaasnigs bbbincihoniwse Page 19 21 CONCLUSION ................. ERE Mee SL Pe 7,17, 19 Joseph Story, Equity Jurisprudence (1836) ........... 15 Isaiah Thomas, Essex, J., Apr. 19, 1786 2000000000000... 11 xi TABLE OF AUTHORITIES—Continued Page John Trenchard & Thomas Gordon, 1 Cato’s Let- ters 110 (Ronald Harow ed., Liberty Classics ed. 1995) (Essay No. 15, Of Freedom of Speech: That the Same is Inseparable from Publick Lib- eT RRR Oe ae ie Te 18 William F. Walsh, A History of Anglo-American A a as SERA a Ol RET MN ene ee 25 James Playstead Wood, The Story of Advertising a RO eI Seat NERD Eien RE Pe ar passim Lawrence C. Wroth, The Colonial Printer (1938).. 7 David Yassky, Eras of the First Amendment, 91 Colum. L. Rev. 1699 (1991) ................................... 26, 27 BRIEF AMICUS CURIAE OF THE AMERICAN ADVERTISING FEDERATION IN SUPPORT OF PETITIONERS This brief is respectfully submitted pursuant to Rule 37 urging that the Court reverse the decision below of the United States Court of Appeals for the Fifth Circuit on the grounds that the federal ban on broadcasting of casino gambling, codified at 18 U.S.C. § 1304, violates the Peti- tioners’ rights under the First Amendment to the Constitu- tion of the United States.* INTEREST OF AMICUS CURIAE The amicus herein represents thousands of advertising agencies, advertisers, and others who participate in the ad- vertising industry, as well as individuals interested in pre- serving freedom of speech. It is from this broad-based, national perspective that the amicus presents its views to the Court. The amicus is the American Advertising Fed- eration (“AAF”), a national trade association that traces its origins to 1903 and represents virtually all elements of the advertising industry. Among AAF’s members are com- panies that produce and advertise consumer products, ad- vertising agencies, magazine and newspaper publishers, radio and television broadcasters, outdoor advertising or- ganizations, and other media. AAF members also include twenty-one national trade associations; more than 200 local professional advertising associations with 52,000 members; and more than 200 college chapters, with more than 6,000 student members. AAF members use virtually all forms of media to advertise and communicate with con- sumers throughout the United States. The amicus respect- fully submits this brief to vindicate the principle that com- 1 Counsel for both Petitioner and Respondents have consented to the participation of the amicus in this case, as evidenced in let- ters filed with the Court pursuant to Supreme Court Rule 37. No party wrote or financially contributed to the preparation of this brief. 2 mercial speech should be entitled to the same constitutional protection as non-commercial speech. SUMMARY OF ARGUMENT The text and history of the First Amendment, as well as the “long accepted practices of the American people,” support the view that truthful commercial messages about lawful products and services should be accorded the same constitutional protection as is non-commercial speech. The text, of course, does not distinguish between commercial and non-commercial aspects of the press. The lack of a distinction for constitutional purposes is confirmed by the practice of state legislatures at the time the Bill of Rights was ratified. Although states regulated trade, the only restrictions on advertising concerned the promotion of un- lawful activities, such as lotteries or horse-racing. This absence of state regulation is consistent with the colonial conception of a “free press,” which included advertising, and with the Framer’s political philosophy, which equated liberty and property. Full protection of commercial speech is also consistent with the history of the First Amendment, which was adopted in part to bar stamp acts that imposed taxes directly on advertising. Advertising grew essentially unchecked and unregulated throughout the nineteenth century. While the number of states and statutes increased, advertising continued to be barred only where it was used to publicize unlawful prod- ucts, services, or activities. In addition, towards the end of the century, some restrictions began to be adopted lim- iting false and misleading advertising. This Court's treat- ment of truthful advertising during and immediately after Reconstruction was indistinguishable from the treatment accorded other forms of speech. The Progressive Era witnessed both an increase in the power of advertising and attempts to limit it. But even these attempts overwhelmingly focused on ensuring that advertising was truthful and not misleading. During this rae eee 3 time, courts analyzed contraints on commercial speech under the rubric of substantive due process. This confu- sion of categories caused the Supreme Court in Valentine v. Chrestensen, 316 U.S. 52 (1942), to erroneously treat restrictions on advertising as solely economic regulations subject only to rational basis scrutiny. That error, which is in part perpetuated by this Court's continued distinction between commercial and non-com- mercial speech, conflicts with the “long accepted practices of the American people.” Those practices—particularly state legislative practice at the times the First and Four- teenth Amendments were ratified by the states—support the contention that truthful, commercial messages about lawful products and services are entitled to full First Amendment protection. Under that standard, the federal ban on broadcast advertising of casino gambling is plainly unconstitutional. ARGUMENT At issue in this case is the federal proscription of broad- cast advertising of “any advertisement or information concerning any lottery, gift, enterprise, or similar statute offering prizes depending in whole or in part upon lot or chance.” 18 U.S.C. § 1304. The government argues that this regulation is constitutional because “the statute is not impermissibly restrictive.” Respondents’ Brief in Opposition to Petition for Writ of Certiorari, at 19. This argument stems from the perception that commercial speech occupies some “subordinate position in the scale of First Amendment values.” Board of Trustees v. Fox, 492 U.S. 469, 477 (1989).2 The amicus demonstrates herein that, throughout most of this nation’s history, the American people made no distinction between commercial and non-commercial speech. 2 This “subordinate position” is exemplified by this Court’s deci- sion in Central Hudson Gas & Electric Corp. v. Public Service Com- mission, 447 U.S. 557 (1980). 4 This amicus has previously addressed the central impor- tance of advertising to the historical development of the American press and to the concept of the freedom of speech and of the press. See, e.g., Brief of Amici Curiae Ameri- can Advertising Federation, et al., Glickman v. Wileman Bros. & Elliot, Inc., 521 U.S. 457 (1997); Brief of Amici Curiae American Advertising Federation, et al., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). In 44 Liquormart, the Court acknowledged the importance of thai historical context in unanimously striking down a state prohibition on advertising of liquor prices. The plurality opinion specifically referred to the historical materials discussed in our amicus brief, noting that: Advertising has been a part of our culture throughout our history. Even in colonial days, the public relied on “commercial speech” for vital information about the market. ... Indeed, commercial messages played such a central role in public life prior to the Found- ing that Benjamin Franklin authored his early defense of a free press in support of his decision to print, of all things, an advertisement for voyages to Barbados. Id. at 1504 (Stevens, Kennedy, Souter & Ginsberg, J.J.) (citations omitted). Justice Thomas, relying in part on the historical analysis submitted by this amicus rejected the notion that there was any “philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech.” Jd. at 1518 (Thomas, J., concurring in part and concurring in the judgment) (citing Brief of Amici, American Advertising Federation, et al.). Justice Scalia, concurring in the judgment, noted his “discomfort with the Central Hudson test,” as well as his “aversion towards paternalistic governmental policies that prevent men and women from hearing facts that might not be good for them.” Jd. at 1515 (Scalia, J., concurring in the judgment). Justice Scalia found the historical mate- rial submitted by AAF, ef al., “consistent with First Ameridment protection for commercial speech, but cer- eee 5 tainly not dispositive.” Jd. He stated that “the long accepted practices of the American people” were there- fore central to interpreting the First Amendment, includ- ing (1) state legislative practices at the time the First Amendment was adopted; (2) state legislative practices at the time of adoption of the Fourteenth Amendment; and (3) “any national consensus that had formed regard- ing state regulation of advertising after the Fourteenth Amendment, and before this Court's entry into the field.” Id. In this brief, amicus curiae reviews the relevant history in effort to address these issues. The amicus respectfully submits that the state legislative history and practice, like the available evidence surrounding the understanding of the generation of the Framers, supports the proposition that, until relatively recently, the American people did not recognize a distinction in the protections afforded “com- mercial” and “non-commercial” speech, other than the ad- vertising of illegal activities and the protections afforded against fraudulent or misleading claims. I. FULL PROTECTION OF COMMERCIAL SPEECH UNDER THE FIRST AMENDMENT IS CONSIST- ENT WITH THE ORIGINAL UNDERSTANDING OF THE FIRST AMENDMENT AND THE PRE- VALENCE AND IMPORTANCE OF ADVERTISING AT THE TIME OF THE FRAMING. The development of a free press and of a commercial, advertising-driven press were inextricably linked. Verner W. Crane, “Introduction” to Benjamin Franklin's Letters to the Press, 1758-1775, at xi, xvi (Verner W. Crane ed., 1950) (“It was a commercial age, and [it] produced a commercial press.”). As a result, the modern distinction between “commercial” messages and other forms of speech would not have occurred to colonial Americans. 6 A. Advertising Was An Integral Part of the “Press” in Colonial America. The interrelationship between editorial and advertising content in the eighteenth century press illustrates the fal- lacy of differentiating for constitutional purposes between commercial and non-commercial speech. American news- papers began to emerge only as colonial business and indus- try began to grow. See Edwin Emery & Michael Emery, The Press and America 19 (1978). As small industries developed a need to inform the public of their wares, printers began publishing newspapers to spread that in- formation. As one commentator has observed, “[wlJell be- fore 1800 most English and American newspapers were not only supported by advertising but they were, even primarily, vehicles for the dissemination of advertising.” James Playstead Wood, The Story of Advertising 85 (1958). Advertising was both a major impetus and means for establishing regularly published newspapers in colonia! America. The majority of the advertisements which appeared in colonial newspapers would be considered “commercial speech” today. “The colonial press regularly carried reput- able medical advertisements, as well as those for books, cloth, empty bottles, corks, and other useful goods and services.” Kent R. Middleton, “Commercial Speech in the Eighteenth Century,” in Newsletters to Newspapers: Eigh- teenth-Century Journalism 277, 282 (Donovan H. Bond & W. Reynolds McLeod eds., 1997). Without these ad- vertisements, the colonial press so important to the Revolu- tionary cause would almost certainly have been less vib- rant, if it would have existed at all because, like today, “[a]dvertising represented the chief profit margin in the newspaper business.” Frank Luther Mott, American Jour- nalism—-A History of Newspapers in the United States through 250 Years: 1690-1960 56 (3d ed. 1963). Among the soals of the first attempted colonial news- paper was the promotion of “Businesses and Negotiations.” en 7 Publick Occurrences, Both Foreign and Domestick, Sept. 25, 1690, at 1, quoted in Frank Presbrey, The History and Development of Advertising 119 (1929). The ineu- gural issue of the first successful American newspaper contained the following solicitation: This News-Letter is to be continued Weekly, and all Persons who have Houses, Lands, Tenements, Farms, Ships, Vessels, Goods, Wares or Merchandise, &c to be Sold or Let; or Servants Run-Away, or Goods Stole or Lost; may have the same inserted at a Rea- sonable Rate. Boston Newsletter, April 24, 1704, quoted in Wood, supra, at 45. The next week’s issue of the Boston News- letter contained paid entries that sought the return of two lost anvils, offered a bounty for capturing a thief, and listed a “very good Fulling Mill to be Let or Sold” in Oyster Bay, New York. /d. at 45-46. When the New-Hampshire Gazette was launched in 1756, its publisher said that the paper would contain Extracts from the best Authors on Points of the most useful Knowledge, moral, religious, or po- litical Essays, and such other Speculations as may have a Tendency to improve the Mind, afford any Help to Trade, Manufactures, Husbandry, and other useful Arts, and promote the public Welfare in any Respect. New Hampshire Gazette, October 7, 1756, quoted in Jef- frey A. Smith, Printers and Press Freedom: The Ideology of Early American Journalism 49 (1988). True to its word, the Gazette, like the other newspapers of its day, carried everything from price lists to political philosophy. Lawrence C. Wroth, The Colonial Printer 234 (1938). Often, more than half of the standard colonial newspaper was taken up by advertising. In 1766, 70% of Hugh Gaine’s New-York Mercury consisted of advertising. A. Lee, The Daily Newspaper in America 32 (1937). The first daily newspaper in the United States was es- tablished in 1784 primarily as a medium for advertising. When the Pennsylvania Packet and General Advertiser in- itially appeared, ten of its sixteen columns were filled with advertisements. Presbrey, supra, at 161. The name of this paper (as well as that of New York’s first daily, The New-York Daily Advertiser), reflected the common understanding that commercial advertisements were as much a part of the news of the day (and the purpose of the press) as reports of government activity. The Boston, New York, and Philadelphia newspapers, like most dailies in these years, “used page one for advertising, sometimes saving only one column of it for reading matter.” Mott, supra, at 157. Also, for much of the colonial era, newspapers did not use layout techniques or differences in typeface to provide a visual distinction between the two; they were regarded as of equal interest to readers and treated the same. Mid- dleton, supra, at 281. As one commentator observed: Advertisements had as much interest as the news columns perhaps greater interest, for they were more intimately connected with the readers’ daily life than were the foreign items that made up so large a part of the news. Arrival of a new cargo of food or drink, or tools, likely was what the man, home from a reading at the coffee house or tavern, talked about at his fireside rather than the reception of a new envoy at some court in Europe. Presbrey, supra, at 154. Advertisements were also thought to have independent value in educating and informing the reading public. In the words of prominent printer-historian Isaiah Thomas, editor of an ardently pro-Revolutionary newspaper [A]dvertisements are well calculated to enlarge and enlighten the public mind, and are worthy of being enumerated among the many methods of awakening and maintaining the popular attention, with which more modern times, beyond all preceding example, abound. 9 History of Printing in America with a Biography of Print- ers, and an Account of Newspapers (1810), quoted in D. Boorstin, The Americans: The Colonial Experience 328 (1958). As a source of information to the popula- tion at large and income to colonial printers, advertising was both influential and plentiful during the latter part of the colonial era. B. The Absence of Advertising Restrictions Is Con- sistent With The Colonial Conception of a “Free Press” That Included Advertising. 1. The challenges to early Stamp Acts evidences the colonial conception of a “free press” includ- ing advertising. Given the prevalance of advertising in colonial Amer- ica, it is not surprising that the very idea of a free press evolved in close connection with the development of advertising. Indeed, one of the major precipitating events of the American Revolution involved a defense of adver- tisements. As this Court has recognized, one of the best-known statements in defense of a free press—Franklin’s famous Apology for Printers—was written in response to an at- tack on an advertisement printed by Franklin.* Orig- inally published in the June 10, 1731, edition of the Pennsylvania Gazette, Franklin’s Apology contended that “Printers are educated in the Belief that when Men differ 3An Apology for Printers (1731), reprinted in 2 Writings of Benjamin Franklin 172 (Albert Henry Smith ed., 1907). In 1731, Franklin printed a politically incorrect advertising notice that was distributed as a standalone commercial handbill. The paper simply proposed a commercial transaction by seeking additional freight and passengers for a ship. At the bottom of the advertisement was the note, “No Sea Hens nor Black Gowns will be admitted on any Terms.” /d. at 176. This handbill outraged the local clergy (the “Black Gowns”). In response to attacks on the advertisement, Benjamin Franklin published his Apology which was at that time, “(bly far the best known and most sustained colonial argument for an impartial press.” S. Botein, “Printers and the American Revolu- tion,” in The Press and the American Revolution 20 (B. Bailyn & J.B. Hench eds., 1980). 10 in opinion, both Sides ought equally to have the Advan- tage of being heard by the Publick.” An Apology for Printers (1731), reprinted in 2 Writings of Benjamin Franklin 174 (Albert Henry Smith ed., 1907). To Frank- lin, even those “opinions” in advertisements should be “heard by the Publick.” Thus, America’s first sustained defense of a free press, and of the very notion of a “mar- ketplace of ideas,” came in response to an attack on a classic example of commercial speech. In addition, the British Stamp Act of 1765 assessed a tax on each printed copy of a newspaper and added a two shilling tax for each advertisement therein. As one com- mentator noted, “[B]y any standard [this amount] was excessive, since the publisher himself received only from 3 to 5 {shillings} and rtill less for repeated insertions.” Arthur Schlesinger, Sr., Prelude to Independence: The Newspaper War on Britain 1764-1776 68 (1966). This tax galvanized the colonial press against the British gov- ernment: Stamp duties also, imposed on every commercial in- strument of writing-on literary productions, and, par- ticularly, on newspapers, which of course, will be a great discouragement to trade; an obstruction to use- ful knowledge in arts, sciences, agriculture, and man- ufactures,; and a prevention of political information throughout the states. Objections by A Son of Liberty, New York J., Nov. 8, 1787, reprinted in 6 The Complete Anti-Federalist 34, 36 (Herbert J. Storing ed., 1981). The opposition of news- papers was based largely, if not primarily, on their con- cern that it encroached on the freedom of expression.* 4In reacting to the Stamp Act, the Town of Worcester directed its representatives in the Massachusetts Assembly to “take special care of the LIBERTY OF THE PRESS.” Schlesinger, supra, at 70; see also Connecticut Gazette, quoted in id. (enjoining its read- ers that “[t]he press is the test of truth, the bulwark of public safety, the guardian of freedom, and the people ought not to sacrifice it.”); New York Gazette or Weekly Post-Boy, Nov. 7, 1765, quoted in id. (flaunting its motto, “The United Voice of all 11 Thus, the repeal of the Stamp Act of 1765 one year after it had been enacted “was a powerful victory for an inde- pendent press and for advertising.” Presbrey, supra, at 151. After the Revolution, and only five years after adopting a state constitution explicitly guaranteeing freedom of the press, Massachusetts enacted a similar stamp tax on news- papers and newspaper advertisements. Eric Nessier, Charging for Free Speech: User Fees and Insurance in the Marketplace of Ideas, 74 Geo. L.J. 257, 264 (1985) (citing Clyde A. Duniway, The Development of Freedom of Press in Massachusetts 136 (1966)). These taxes were widely denounced as, in printer Isaiah Thomas's words, an “unconstitutional restraint on the Liberty of the Press.” Isaiah Thomas, Essex J., Apr. 19, 1786, quoted in Carol S. Humphrey, “That Bulwark of Our Liberties’: Massa- chusetts Printers and the Issue of a Free Press 1783-1788, 14 Journalism Hist. 34, 37 (1987). Repeal of the adver- tising tax in 1786 was also cited as a triumph for freedom of the press. /d.; see also Grosjean v. American Press Co., 297 U.S. 233, 248 (1936) (noting that “[t}he framers were likewise familiar with the then recent Massachusetts episode; and . . . that occurrence did much to bring about the adoption of the [First Amendment]”). 2. State trade regulations restricting only unlaw- ful products and services evidences the colonial conception of a “free press” including advertis- ing. The practices of state legislatures around the time of the First Amendment’s ratification provide further evidence that the generation of the Framers did not distinguish between the constitutional status of commercial and non- commercial speech. Indeed, state statutes in effect at this His Majesty's free and loyal subjects in America-LIBERTY, PROP- ERTY, and no STAMPS.”). 5 All powers not delegated to Congress were reserved to the people and the states, U.S. Const. amends. IX, X, and the First Amendment explicitly limited Congress’s authority over speech and 12 time did not restrict truthful commercial messages about lawful products or services.* Rather, consistent with the constitutions of the ten states that explicitly protected the freedom of the press,’ advertising was limited only when used to promote products, services, or activities that were themselves unlawful. the press. As such, it is unlikely that the federal government was granted greater power to restrict speech than existed in the states. The fact that, as discussed below, state legislatures did not regulate truthful advertising of lawful products and services suggests that the federal government could not regulate such speech because advertising was regarded as within “the freedom of speech and of the press.” 6 This conclusion rests upon a review of the compilations of ratification-era statutes for each state closest in date to 1791. The Public Statute Laws of the State of Connecticut (1808); Laws of Maryland (1811); The Laws of the Commonwealth of Massachu- setts from November 28, 1780 to February 23, 1807 (1807); The Laws of the State of New Hampshire (1797); The Laws of the State of New Jersey (1800); Laws of the State of New York (1802); The Public Acts of the General Assembly of North Caro- lina (1804); Digest of the Acts of the General Assembly of Pennsylvania (1841); The Public Laws of the State of Rhode-Island and Providence Plantations (1798); The Public Law of the State of South Carolina (1790); Laws of the State of Vermont (1797); Collection of All Such Acts of the General Assembly of Virginia (1803). All compilations are available at The Edward Bennett Williams Law Library, Georgetown University Law Center. Con- vemporaneous compilations for Delaware and Georgia were unavail- able. 7 Decl. of Rights para. XXIII (Del. 1776); Ga. Const. of 1798 art. IV, §V; Decl. of Rights para. XXXVIII (Md. 1776): Decl. of Rights para. XVI (Mass. 1780); Bill of Rights art. XXII (NT. 1783); Decl. of Rights para. XV (N.C. 1776); Decl. of Rights para. XII (Pa. 1776); Decl. of Rights. §7 (S.C. 1778): Decl. of Rights ch. 1, art. XIII (Vt. 1777): Deel. of Rights para. XII (Va. 1776). Pennsylvania and Vermont connected that provision to protection for freedom of speech. See generally Bogen, infra, at 441 n.55. Of the remaining four states, Rhode Island and Connecticut had not drafted state constitutions, and New York and New Jersey did not provide specific state constitutional guarantees of freedom of press and speech. See Leonard A. Levy, Emergence of a Free Press 189 (1985). 13 Early statutes show efforts to regulate merchants and shopkeepers,’ liquor and taverns,® potash,’ malt," a va- riety of commodities,” attorneys,’* and doctors.* Among other things, these statutes required licenses, prevented charging of unreasonable prices, and set standards for in- spection and weighing of commodities. The statutes sur- veyed, however, reveal no restrictions on the right of these regulated industries to advertise lawful products and serv- ices. Sellers were left to their own creativity in seeking to attract attention to their wares. And buyers were pro- tected against potentially false or misleading claims by the common law, tempered by the doctrine of caveat emptor. See, e.g., Borrekins v. Bevan, 3 Rawle 23, 37 (Pa. 1831) (“A sample, or description in a sale note, advertisement, 8 See, e.g., Act for Punishing and Preventing Oppression, 1635 (amended 1730), The Public Statute Laws of Connecticut 544 (1808). 9 See, e.g., Act Regulating Licensed Houses, 1791, The Laws of the State of New Hampshire 373-76 (1797); Act to Lay A Duty on Strong Liquors, and For Regulating Inns and Taverns, 1801, Laws of the State of New York 439-43 (1802); Act for Regulating Ordinaries, Houses of Entertainment and Retailers of Spirituous Liquors, 1798, The Public Acts of the General Assembly of North Carolina 122-23 (1804). 10 See, e.g., Act to Regulate the Exportation of Potash and Pearl Ash, 1792, The Laws of Maryland 119-92 (1811); Act to Regulate Flax-Feed, Pot-ash and Pearl Ash for Exportation, 1785, The Laws of the State of New Hampshire 377-79 (1797). ll See, e.g., Act for the Better Making and Measuring of Malt, 1700, The Laws of the Commonwealth of Massachusetts 186 (1807). 12 See, e.g., Act for Regulating the Exportation of Tobacco and Butter, and the Weight of Onions in Bunches, and the Size of Lime-Casks, 1785, The Laws of the Commonwealth of Massachu- setts 320-23 (1807); Act to Prevent Frauds and Deceits in Selling Rice, Pitch, Tar, Rosin, Turpentine, Beef, Pork, Shingles, Stoves and Fire-wood, and to Regulate the Weighing of the Merchandise in this Province, 1746, The Public Law of the State of South Carolina 208-10 (1790). 13 See, e.g., Act Regulating the Admission of Attornies, 1785, The Laws of the Commonwealth of Massachusetts 318-19 (1785). 14 See, e.g., Act to Regulate the Practice of Physic and Surgery, 1783, Laws of the State of New Jersey 7-8 (1783). 14 bill of parcels, or invoice, is equivalent to an express war- ranty that the goods are what they described”); see also infra Section 1.C.3; see generally Walon H. Hamilton, The Ancient Maxim Caveat Emptor, 40 Yale L. Rev. 1133 (1931). The sole limitations placed on advertising restricted the promotion of certain prohibited activities. For example, during the period surrounding the ratification of the Bill of Rights, several states prohibited or restricted lotteries as well as their advertisement and promotion.” -Massa- chusetts, for example, enacted a statute in 1785 that im- posed, with respect to unauthorized—and therefore illegal —lotteries, separate fines for setting up a lottery and “aid- ing and assisting in any such lottery, by printing, writing, or in any other manner publishing an account thereof, or where the tickets may be had.” Act for the Suppression 15 See, e.g., Act For the Prevention of Lotteries, 1792, the Laws of Marylard 189-90 (1811) (prohibiting lotteries, as well as their “propos[al] to the public,” absent permission of the legislature) Act for the Suppressing of Lotteries, 1791, the Laws of the State of New Hampshire 339 (1805) (separate penalties for setting up a lottery and “aiding or assisting . . . by printing, or any other ways publishing an account thereof”); Act of Feb. 13, 1797, The Laws of the State of New Jersey 227-28 (1800) (fining those who print, write or publish any account of where tickets are available or who “expose to public view, any . . . advertisement or advertise- ments of or concerning such lottery.”); Act to Prevent Private Lot- teries. to remit certain Penalties, and to Repeal the Acts therein Mentioned, 1783, Laws of the State of New York 35-38 (1802) (providing penalties for being “in any way concerned” with lot- teries not authorized by the state, including “printing, writing, or any other ways publishing an account thereof’); Act for Suppress- ing and Preventing of Private Lotteries, 1762, The Public Law of the State of South Carolina 256-67 (1790) (fining anyone “who shall make, writ, print or publish, or cause to be written or published, any scheme or proposal” for a private lottery). Only Pennsylvania completely outlawed lotteries (and their advertisement). Act for the More Effectual Suppressing and Preventing of Lotteries, 1762, A Digest of the Acts of the General Assembly of Pennsylvania 584- 85 (1841) (setting 20 pound fine for, inter alia, advertising or causi > to be advertised any lottery). 15 of Lotteries, 1785, The Laws of the Commonwealth of Massachusetts 252-53 (1807). A handful of states prevented the advertisement of other illegal activities. For example, Connecticut and Pennsylvania prohibited staging and advertising horse races. Act to Prevent Horse Racing, 1803, The Public Statute Laws of the State of Connecticut 381-82 (1808); Act Against Horse Racing, 1820, A Digest of the Acts of the General Assembly of Pennsylvania 450-51 (1841). And Rhode Island prohibited the erection of a sign “for the keeping of a public house” without first obtaining an innkeeper’s license. Act Enabling the Town-Councils of Each Town In This State to Grant Licenses, 1728, The Public Laws of the State of Rhode-Island and Providence Plantations 391-94 (1798). Despite these regulations, however, the state legislatures were not opposed to adver- tising in general. 3. Common law exceptions to free commercial speech involving false or misleading speech evi- dences the colonial conception of a “free press” including advertising. The First Amendment was adopted against the back- ground of a venerable common-law tradition prohibiting commercial misrepresentation (as well as the torts of libel and slander). Sir William Blackstone acknowledged that “every kind of fraud is equally cognizable . . . in a court of law.” 3 William Blackstone, Commentaries *431. Justice Story’s treatise Equity Jurisprudence addressed that “old head of equity,” the law of misrepresentation, in great detail: Where the party intentionally, or by design, misrep- resents a material fact, or produces a false impres- sion, in order to mislead another, or to entrap or to cheat him, or to obtain an undue advantage of him; in every sense there is a positive fraud in the truest sense of the terms. Joseph Story, Equity Jurisprudence, § 192 (1836). That liability could accompany this category of speech demon- ch inc Altai te NAS SE a an RC AMET TT ee 16 strates that it was beyond what was understood to be constitutionally protected. A proposed draft of the First Amendment by Thomas Jefferson shows that the free press envisioned by the Framers did not encompass the publication of falsehoods—commercial or noncommercial: le shall not be deprived or abridged of their 8 py or to write or otherwise to publish any thing but false facts affecting injuriously the life, liberty, property or reputation of others or affecting the peace of the confederacy with foreign nations. 15 The Papers of Thomas Jefferson 367, 367 (J. Boyd ed., 1958). Advertisements of unlawful products were also outside the scope of constitutional protection. According to Blackstone, the common law considered it a criminal of- fense to “procure, counsel, or command another to oom mit a crime.” 4 William Blackstone, Commentaries ‘36 (defining an accessory before the fact); Rex v. Higgins, 2 East 5, 102 Eng. Rep. 269, 276 (K.B. 1801) ( A solicitation or inciting of another, by whatever means it is attempted, is an act done; and that such an act done with a criminal intent is punishable by indictment has been clearly established by . . . several cases. ); see gen- erally Pittsburgh Press Co. v. Pittsburgh Comm'n on Hu- man Relations, 413 U.S. 376 (1973). Advertising un- lawful products could thus be prohibited at common law as solicitation to commit a crime. 4. Fully protecting advertising is consistent with the Framers’ political philosophy, which equated liberty and property. The inextricable link between commercial and other speech is also reflected in the Framers’ political philoso- phy, which generally equated liberty and property rights. In seventeenth and eighteenth century England there were two reigning justifications for free expression: the idea that free speech “was an instrument to some collective good” and the notion that free speech was a natural property right of the individual.” John O. McGinnis, The 17 Once and Future Property-Based Vision of the First Amendment, 63 U. Chi. L. Rev. 49, 58 (1996). In this tradition, freedom of speech and property rights were seen as essential parts of an individual’s liberty, an understanding derived from the philosophical writings of John Locke, who defined the “state of perfect freedom” as the ability of people to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave or depending upon the will of any other man. John Locke, The Second Treatise on Government 4 (Thomas P. Peardon ed., Bobbs-Merrill 1st ed. 1975) 16 As one newspaper commentator put it. Liberty and Property are not only join’d in common discourse, but are in their own natures so nearly ally’d that we cannot be said to possess the one with- out the enjoyment of the other. Boston Newsletter, February 16, 1772, quoted in Clinton Rossiter, Seedtime of the Republic 379 (1953). The libertarian Cato drew on Locke in equating liberty and property. Applying this view to the freedom of 16 George Mason’s Virginia Declaration of Rights further evi- dences this Lockean linkage of liberty and property, stating that among the natural rights of man was “the Enjoyment of Life and Liberty, with the Means of acquiring and possessing Property, and pursuing and obtaining Happiness and Safety.” Decl. of Rights § 1 (Va. 1776). 17 Cato’s Letters were published from 1720 to 1723 and widely circulated in the colonies as “the most popular, quotable, esteemed source of political ideas in the colonial period.” Rossiter, supra, at 141. His articulation of the tie between property rights and free speech was enormously influential in colonial America. Jeffrey A. Smith, Printers and Press Freedom: The Ideology of Early Amer- ican Journalism 25 (1988). In fact, Cato’s Essay on Free Speech, first printed in America by Benjamin Franklin in 1722, contained the seed of the First Amendment’s press clause. See generally David S. Bogen, The Origins of Freedom of Speech and Press, 42 Md. L. Rev. 429, 444 (1983). 18 expression, Cato articulated the importance of free speech and its inextricable link with property rights: This sacred Privilege is so essential to free Govern- ment, that the Security of Property, and the Freedom of Speech, always go together; and in those wretched countries where a Man cannot call his Tongue his own, he can scarce call any Thing else his own. John Trenchard & Thomas Gordon, 1 Cato’s Letters 110 (Ronald Harrow ed., Liberty Classics ed. 1995) ( Essay No. 15, Of Freedom of Speech: That the Same is Insep- arable from Publick Liberty, Feb. 4, 1720). Distinguishing between the value of commercial and non- commercial speech thus would never have occurred to the Framers, who essentially regarded all rights, including the right to free speech, as a form of property right shielded from government interference. James Madison, the drafter of the First Amendment, echoed Locke and Cato, writing: In its larger and juster meaning, [property] em- braces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage. In the former sense, a man’s land, or merchandise, or money is called his property. In the latter sense, a man has a property in his opinions and the free communication of them. James Madison, Property, The National Gazette, Mar. 27, 1792, reprinted in James Madison, 14 Papers of James Madison 266-68 (Robert A. Rutland & Thomas Mason eds., 1983). This linkage of liberty and property rights strongly sug- gests that colonial Americans viewed the First Amendment as protecting far more than just political speech. As one contributor writing under the pseudonym “Philalethes” de- clared in Boston’s Herald of Freedom in 1788, Americans are nurtured in the ennobling idea that to think what they please, and to speak, write and publish 19 their sentiments with decency and independency on every subject, constitutes the dignified character of Americans. Boston Herald of Freedom, Sep. 15, 1788, quoted in Smith, supra, at 19. Commercial matters were also to be counted among the “subjects” to which the freedom of speech ob- tained. As leading Anti-Federalist Richard Henry Lee said in his demand for a bill of rights, “A free press is the chan- nel of communication as to mercantile and public affairs.” Letter XVI, Jan. 20, 1788, in An Additional Number of Letters from the Federal Farmer to the Republican 151- 53 (1962). In keeping with this recognition that adver- tising was a critical part of the press whose freedom the Framers sought to guarantee, the text of the First Amend- ment draws no distinction between the commercial and non-commercial aspects of the press. Il. THE PERVASIVENESS OF ADVERTISING AND STATE LEGISLATIVE PRACTICE AT THE TIME OF PASSAGE OF THE FOURTEENTH AMEND. MENT ARE CONSISTENT WITH THE VIEW THAT COMMERCIAL SPEECH IS ENTITLED TO FULL FIRST AMENDMENT PROTECTION. An examination of state legislative practices at and around the time the Fourteenth Amendment was ratified confirms the conclusion that truthful messages about law- ful products or services are entitled to full protection. This period marked a robust increase in the prominence and utility of advertising. States, while adopting some restric- tions on advertising that reflected the general shift from the common law tradition to statutory law, see, e.g., Morton Keller, Affairs of State 347 (1977), continued to focus their regulatory efforts on limiting advertising for illegal products and services." 18 This conclusion rests upon an examination of all state codes published closest to 1868. For states with less frequently published codes, the last code published before 1868 and the first one published after 1868 were examined to determine the state of the law at the time of incorporation. Although unable to obtain the State 20 A. Commercial Speech Was An Integral Part of American Life During Reconstruction. Advertising was “vigorous and thriving by the mid- nineteenth-century mark.” Wood, supra, at 158. As one publisher in 1847 observed, “advertising is news. People wanted to read it just as much as they wanted to read the reports of the day’s happenings.” Jd. at 159-60. To illu- strate, a typical issue of the New York Herald in 1860 carried thousands of small-space advertisements. Like many of its colonial counterparts, its front page bore no editorial matter, only advertising. /d. at 166-167; Mott, supra, at 397-98, 593-94. Only the intense interest in the Civil War supplanted advertising as the front-page mate- rial in most papers. Mott, supra, at 397; Presbrey, supra, at 259. Nonetheless, even in 1869, the New York Herald typically held eight columns of news, and fifty columns of advertising. Wood, supra, at 169. Although the Civil War may have pushed advertising from the front page, the demonstrated ability of advertis- ing to sell Union war bonds led to a vast expansion in advertising’s use. Presbrey, supra, at 253. A year after the close of the Civil War: Every rock with surface broad enough, and facing in a direction from which it could be seen, and every cliff which some adventurous painter had been able to climb was daubed over with signs. Every fence, every unoccupied building, the boardings around every large construction site, even the New York curbstones, shouted advertising messages. Fences along the highways and railroad rights of way wore advertising in letters from six inches to two feet high. Bridges, especially covered bridges, bore huge ad- vertising signs. Wood, supra, at 182; see also Presbrey, supra, at 255. Advertising’s prominence also led to other innovations including the first advertising agent in 1841, the first news- Code of Wisconsin, emicus did examine the other thirty-seven states admitted to the Union by 1880, as well as the Territorial Codes of Utah, Washington, Wyoming, and New Mexico. 21 paper directory in 1869, and the first market survey in 1879. G. Allen Foster, Advertising: Ancient Market Place to Television 48-49, 126-31 (1967); Wood, supra, at 142. In 1867, Galaxy Magazine described advertising in the United States as having arrived at the point at which the names of successful advertisers have become household words where great poets, politicians, phi- losophers and warriors of the land are as yet unheard of; there is instant recognition of Higg’s saleratus and Wises soap even where the title of Tennyson’s last work is thought to be “In the Garden,” and Long- fellow understood as the nickname of a tall man. Presbrey, supra, at 255. Advertising had become a major part of American culture. B. State Legislative Practice During Reconstruction Is Consistent With Full First Amendment Protec- tions for Truthful Commercial Speech Promoting Lawful Products and Services. Even as advertising emerged as an increasingly power- ful societal force, state governments allowed it to grow un- checked, primarily restricting the promotion of illegal prod- ucts or services only.” The restrictions on advertising that did exist were aimed at the illegality of the advertised con- duct, rather than advertising itself. For example, Delaware barred advertising by unlicensed lottery retailers only. Del. Rev. Stat., ch. 98, v. 12, § 6 (1874). Similarly, Vermont barred the advertising of lotteries “not granted by the leg- islature of this state or of the United States.” Vt. Stat., tit. 34, ch. 119, § 7 (1870). 19 For example, as before, a number of states restricted lottery advertising. See, e.g. Cal. Penal Code § 323 (1872): Conn. Gen. Stat., tit. 12, § 150 (1866); Del. Rev. Stat., chap. 98, v. 12, $6 (1874); Digest of Laws of Fla. ch. 80, §4 (1881): Iowa Code § 4043 (1873); Compiled Laws of Kan., ch. 31, § 342 (1885): Ky. Rev. Stat., ch. 28, art. 21, § 4 (1860 & Supp. 1866); Me. Rev. Stat.. tit. 11, ch. 128, § 13 (1884); Md. Code, art. 30, § 114 (1860): Miss. Rev. Code § 2605 (1871); Compiled Laws of Nev. § 2498 (1873): N.Y. Rev. Stat., ch. 20, tit. 8, § 53 (1875); Ore. Gen. Laws, Crim. Code, ch. 8, § 661 (1874); Compiled Laws of Terr. of Utah § 2002 (1876) ; Vt. Gen. Stat., ch. 119, § 7 (1870). 22 In response to an aggressive anti-abortion campaign be- ginning in the 1840s, many states also adopted extensive abortion restrictions. James C. Mohr, Abortion in Amer- ica 147-170 (1978). Some of these restrictions imposed penalties on “[e]very person, who shall, by publication, lecture . . . or by advertisement, or the sale or circulation of any publication, encourage or prompt the commission of [a miscarriage].” Conn. Gen. Stat., tit. 12, ch. 2, § 25 (1866).7° Other then-illegal products or activities that could not be advertised included prize fights,*" and obscene books.” Similarly, West Virginia, New York, and Kansas, like their modern counterparts, barred obscene advertis- ing. See W. Va. Code, ch. 149, § 11 (1868); N.Y. Rev. Stat., pt. 4, ch. I, tit. 6, § 77 (1875); Compiled Laws of Kan, ch. 31, § 342 (1885). Despite the absence of legislation barring false and mis- leading advertising of lawful products and services, as ad- vertising increased, so too did the recognition that, if false, it could cause harm. Thus, beginning around 1864, certain more successful newspapers refused to accept ads for questionable patent medicines and quacks. Wocd, supra, at 181. Indeed, many papers warned their reacers against these disreputable advertisers. And in 1872, the national government enacted regulations aimed at restrict. ing the dissemination of fraudulent ads through the mai!.* 20 See also Cal. Penal Code §317 (1872); Digest of Laws of Fla., ch. 59, § 10 (1881); Compiled Laws of Kan., ch. 31, § 342 (1885); Md. Laws, ch. 179, §2 (1868); Mass. Gen. Stat. ch. 165, § 10 (1860); NJ. Rev. Stat., Crimes § 44 (1874); N.Y. Rev. Stat. pt. 4, ch. I, tit. 6, § 78 (1875); Ohio Rev. Stat., ch. 2732, § 1 (1860 & Supp.); R.1. Gen. Stat., ch. 232, § 23 (1872); Compiled Laws of Terr. of Utah, Penal Code, tit. 9, ch. 8, § 162 (1876). Notably, these restrictions on abortion advertising applied with equal force to all speech regarding abortion, commercial or non-commercial. 21 Compiled Laws of Kan., ch. 31, § 338 (1885). 22 Cal. Penal Code §311(4) (1872); Compiled Laws of Terr. of Utah, Penal Code, tit. 9, ch. 8, § 162 (1876). 23 See Act of June 8, 1872, ch. 335, 17 Stat. 283 (codified at 39 U.S.C. § 3005 (1994)) (authorizing the Postmaster General, after 23 To the extent that this Court addressed issues relating to advertising during and immediately after Reconstruc- tion, its decisions were consistent with the view that ad- vertising should be accorded the same protection as other forms of speech. To illustrate, in Ex parte Jackson, 96 U.S. 727 (1877), the Court held that Congress’s 1868 ban on the advertising of lotteries by mail did not violate the First Amendment. The opinion primarily dealt with Congress’s power over the postal system, stating that “{t}he right to designate what shall be carried necessarily involves the right to determine what shall be excluded.” 96 U.S. at 732. But this Court treated lottery advertise- ments in the same way that it treated material that today would be fully protected by the Constitution. Ill. LOWER PROTECTION FOR COMMERCIAL SPEECH IS A TWENTIETH-CENTURY PHENOM- ENON THAT HAS ITS ORIGINS IN A DISEN- CHANTMENT WITH ECONOMIC LIBERTIES AND CONFUSION WITH ECONOMIC SUBSTANTIVE DUE PROCESS. A. The Pervasiveness of Advertising Grew in the Early Twentieth Century. Advertising experienced unprecedented growth and prestige in the early twentieth century. By 1898, a sur- vey by the Press and Printer of Boston counted 2,583 companies that advertised in regular periodicals of general a hearing, to issue a Fraud Order directing the local postmaster to cease delivering mail or paying postal money orders addressed to a merchant determined to have fraudulently obtained money or property via mail). *4The 1904 St. Louis World’s Fair recognized the growth of the industry and staged “Ad-Men’s Day” with a meeting grandly named “The International Advertising Association.” George French, 20th Century Advertising 119 (1926). Professionalization of ad- vertising continued with the creation of the Advertising Federation of America, which was formed in 1905. Wood, supra, at 335. Other advertising groups were formed later, including the New York Advertising League in 1906 and the American National Advertising Managers in 1910. French, supra, at 131, 141. NN 24 circulation. Presbrey, supra, at 362. Advertisements dur- ing World War I helped to sell $24 billion in war bonds to 22 million Americans and raise $400 million for the Red Cross. Jd. at 565. One observer remarked: Advertising did not win the war, but it did its bit so effectively that when the war was over advertising ... had the recognition of all governments as a prime essential in any large undertaking in which the active support of all the people must be obtained for success. Id. at 566. As was the case after the Civil War, this widespread recognition of the power of advertising in war was not lost on manufacturers and retailers when peace returned. Total investment in advertising soared from $1.5 billion in 1918 to almost $3 billion in 1920 and continued to grow throughout the decade. Wood, supra, at 364-365.” B. Disenchantment With Advertising Became Appar- ent as a Result of Reform Movements and the Great Depression. As the Gilded Age gave way to the Progressive Era and the notion that civil liberties differed from economic liberties began to take hold, disenchantment with unfet- tered capitalism, and advertising, grew. Matthew Joseph- son, The Robber Barons 445-53 (1934); see generally Richard Hofstadter, The Age of Reform (1955). Maga- zines that had once accepted patent medicine advertise- ments—such as the Ladies Home Journal and Collier's —led the charge in 1904 and 1905 against the fraudulent claims made by the industry.** Wood, supra, at 327-30. 25 Part of this growth stemmed from the use of radio as a new advertising medium. Although the first radio ad did not air until 1923, by 1929 the industry received an estimated $15 million in advertising revenues for its roughly 500 broadcast stations. Pres- brey, supra, at 578. 26 Other targets of early reformers included billboards and other advertising perceived to be littering the landscape and testimonial advertising by celebrities that did not disclose that a fee had been paid for their endorsement. Wood, supra, at 347, 392-93. 25 Some papers, including the Scripps-McRae League of Newspapers, appointed censors to scrutinize all advertis- ing copy for questionable claims. Id. at 334. The public outcry against adulterated and dangerous foods and drugs ultimately led to the passage of the federal Food and Drug Act of 1906, which forced manufacturers to justify their claims and list product ingredients. Jd. at 333. Because of these and other concerns the advertising industry in 1911 pushed for a model statute barring “un- true, deceptive, or misleading” advertising. Hurnard J. Kenner, The Fight for Truth in Advertising 28 (1936). By 1920, thirty-seven states had adopted the Advertising Federation of America’s model antifraud statute, Wood, supra, at 336, which largely represented a codification of long-standing common-law restrictions on false or mis- leading commercial messages. See William F. Walsh, A History of Anglo-American Law 328-329 (1932). The Depression hit advertising hard in terms of both income *’ and, perhaps more importantly, in public esteem. Wood, supra, at 418. Critics charged that advertising was wasteful, merely adding to the consumer’s cost. /d. at 424. Advertising was attacked because [t}here had to be a villain. Advertising as the public voice of industry and business was obvious and acces- sible to attack. Advertising had been used to urge people to expenditures they could not afford, to lure with false promises, to lull into false security. Adver- tising was to blame, and shrill cries arose for its an- nihilation. Id. at 418.% This national mood during the Depression spurred calls for increased restrictions on advertising. The 27 Following the stock market crash, advertising revenues tum- bled from $3.4 billion in 1929 to $1.3 billion in 1933. Wood, supra, at 417. 28 Public skepticism about the role of advertising in the Ameri- can economy rose significantly. The consumers’ movement formed during this era, producing best-selling exposés of advertising prac- tices with such lurid titles as 100,000,000 Guinea Pigs, Eat, Drink and Be Wary, and Partners in Plunder. Id. at 419-420. 26 federal government aggressively responded to the perceived excesses of advertising through New Deal enactments.” C. The Incorrect Association of Advertising and Eco- nomic Liberties Led to the Misguided Distinction Between Commercial and Non-commercial Speech. Although disenchantment among the body politic with economic liberties led to increased state regulation of the economy, this Court initially acted as a brake on that sentiment, employing the doctrine of substantive due process to strike down many state laws. Before 1919, the Court treated political speech as subject to the states’ police power, power from which economic activities were relatively free. But the Court did not treat all speech as a political ac- tivity subject to government ordinance. Some speech was protected as a valuable economic activity... . {F]ree trade in ideas became a commercial canon long before it would become the metaphorical key to con- stitutional protection of political speech. Rudolph J.R. Peritz, Competition Policy in America, 1888-1992 100 (1996). In contrast to the First Amend- ment, which this Court had not treated as applicable to constrain state power, the Fourteenth Amendment’s due process clause was interpreted to apply to the states.*° Thus, most judicial challenges during this period to restrictions on advertising relied on a substantive due process claim that the restrictions interfered with the pur- suit of a lawful business rather than advancing First Amendment claims. For example, in Halter v. Nebraska, 29 Indeed, Professor Bruce Ackerman has argued that these and other changes brought about by the New Deal amounted to a de- cisive watershed in constitutional law. Bruce Ackerman, Consti- tutional Politics/Constitutional Law, 99 Yale L.J. 453, 510-514 (1989). See also David Yassky, Eras of the First Amendment, 91 Colum. L. Rev. 1699 (1991) (defining the New Deal as one of three “First Amendment Eras”). 30 It was not until 1931 that this Court first explicitly held that the First Amendment applied to the states. See Stromberg v. California, 283 U.S. 359, 368 (19381). genet a ea hat ae es 27 205 U.S. 34 (1907), this Court upheld a state law bar- ring use of the American Flag on beer bottles. The parties failed to raise a First Amendment challenge, instead rely- ing on a due process claim. State courts during this period also analyzed, and in many cases invalidated, challenges to advertising regulations under the rubric of substantive due process.** By the time the Court decided Valentine v. Chrestensen, 316 U.S. 52 (1942), however, in which it first stated that advertising was outside the protection of the First Amendment, the notion of substantive due process had been rejected, and review of economic legislation reduced to “rational basis” scrutiny.** Valentine’s dismissive treatment of commercial speech seems most closely linked to the Court’s rejection of economic substantive due proc- ess, rather than any evaluation of the First Amendment guarantees envisioned by the Founders. Thus, what has been said about the Contracts Clause may be said about 31 See, e.g., Seattle v. Proctor, 48 P.2d 238, 239 (Wash. 1935) (striking down a city statute compelling businesses to disclose “the number of such . . . [articles] and the lowest price at which each of said articles were offered for sale to the public prior to said advertisement.”); Ware v. Ammon, 278 S.W. 593, 595 (Ky. Ct. App. 1925) (holding unconstitutional a bar on advertising by dry cleaners without the fire marshal’s permission to engage in busi- ness) ; see also State ex rel. Booth v. Beck Jewelry Enters., Inc., 41 N.E.2d 622, 626 (Ind. 1942) (“Truthful price advertising is a legiti- mate incident to a lawful merchandising business. Deprivation of the right so to advertise has been held to violate the due process clause of the Fourteenth Amendment.”) (citations omitted). 32 See, e.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) : United States v. Carolene Products Co., 304 U.S. 144, 152 (1938) (“regulatory legislation affecting ordinary commercial transactions” was not “to be pronounced unconstitutional unless . . . it [does not rest] upon some rational basis”); see also Yassky, supra, at 1729- 1730 (describing the West Coast Hotel line of cases as legitimizing the activist state and repudiating the prior era’s Lochner-style constitutionalization of rights to property and contract). But see Needham v. Proffitt, 41 N.E. 606, 608 (Ind. 1942) (striking down statute prohibiting funeral directors from advertising under state free speech guarantee). 28 the protection of commercial speech: “misinterpreted as a form of economic substantive due process, [protection of commercial speech] was wrongly discredited when that doctrine [of substantive due process] was rightly dis- carded.” Doug A. Kmiec & John O. McGinnis, The Con- tract Clause: A Return to the Original Understanding, 14 Hastings L. Q. 525, 526 (1987). Thus, the differentiation between commercial and non- commercial speech is properly understood as an outgrowth of twentieth-century disenchantment with property rights and economic liberties, and the mislabeling of advertising as a substantive due process right rather than a First Amendment freedom. The distinction between commercial and non-commercial speech, however, is inconsistent with the text and history of the First and Fourteenth Amend- ments, as well as with the long-standing “traditions of the American people.” IV. THIS PROPOSED INTERPRETATION OF THE FIRST AMENDMENT IS NOT INCONSISTENT WITH THIS COURT'S PRIOR PRECEDENT AND WILL NOT DRAMATICALLY ALTER THE FACE OF FIRST AMENDMENT JURISPRUDENCE. Removing the distinction between commercial and non- commercial messages is consistent with most commercial speech cases this Court has decided. Indeed, in most cases, the court has found restrictions on commercial speech to be unconstitutional. See, e.g., 44 Liquormart v. Rhode Is- land, 517 U.S. 484 (1996); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (invalidating a federal law barring brewers from displaying alcoholic content of their beers on the products’ labels); Edenfield v. Fane, 507 U:S. 761 (1993) (striking down a restriction preventing Florida CPAs from making uninvited in-person visits or telephone calls to potential clients); City of Cincinnati v. Discovery Network, 507 U.S. 410 (1993) (striking down a ban pro- hibiting newsracks used to distribute commercial handbills on public property). This analysis would also have the impact of avoiding the anomalous results that the Central a eee. eT Ts ae 29 Hudson test occasionally allows. See, e.g., Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986). The proposed interpretation would not, however, pre- vent government regulation of false and misleading adver- tising. As shown, the First Amendment has always been understood to allow regulation of such speech. This view is consistent with Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), where this Court granted First Amendment pro- tection to commercial speech but held that the government had the power to ensure that commercial messages were not false or misleading. 425 U.S. at 771-72 n.24. Simi- larly, the government would not be prohibited from re- stricting advertising of illegal products and services. rhus, affording commercial speech full protection is con- sistent with the traditional understanding of the First Amendment and is not contrary to the established prece- dents of this Court. Vv. THE FEDERAL BAN ON BROADCAST ADVER- TISING OF CASINO GAMBLING IS PROHIBITED BY THE FIRST AMENDMENT. Assessed under the level of scrutiny accorded fully pro- tected speech, this becomes an easy case.** First, the gov- 33 Products and services that could not be advertised in the colonial and Reconstruction eras were prohibited in their entirety (e.g., horse-racing and lotteries). Such activities, when lawful, could be advertised. There is also no basis for relying on such statutes to uphold advertising restrictions on products that may lawfully be marketed to the overwhelming majority of the popula- tion. See Dunagin v. City of Oxford, 718 F.2d 738, 748 (5th Cir. 1983) (en banc) (protection of commercial speech “would disappear if its protection ceased whenever the advertised product might be used illegally’’). 34 As the Petitioners’ brief conclusively demonstrates, however, assessed under the Central Hudson analysis, the broadcast ban is unconstitutional. See Petitioners’ Brief. Certainly, if the regula- tion were invalid under this lower level of scrutiny, it would fail under the more searching review required for fully protected speech. 30 ernment cannot support its claim that curbing gambling is a compelling governmental interest when such activity is not illegal. Moreover, this regulation is not sufficiently narrowly tailored to serve the government’s interest: the very fact that the government allows advertising of casino gambling through other media implicates the effectiveness of a ban on the broadcasting of casino gambling ads. Sim- ilarly, the Fifth Circuit argument about the “powerful sensory appeal of gambling conveyed by television and radio,” Greater New Orleans Broadcasting Ass'n v. United States, 149 F.3d 334, 340 (Sth Cir. 1998), fails in light of the exceptions to the broadcast ban which allow adver- tising of other forms of gambling. 18 U.S.C. § 1307. CONCLUSION For the reasons set forth herein, the Court should re- verse the Fifth Circuit’s decision. In the process, the Court should make clear that truthful commercial speech about lawful products, services and activities should be accorded the same level of constitutional protection as non-com- mercial speech. Respectfully submitted, Of Counsel RICHARD E. WILEY WALLACE S. SNYDER Counsel of Record President DANIEL E. Troy JEFFREY L. PERLMAN BENJAMIN B. REED Senior Vice President WILEY, REIN & FIELDING Government Affairs 1776 K Street, N.W. AMERICAN ADVERTISING Washington, D.C. 20006 FEDERATION (202) 719-7000 1101 Vermont Avenue, N.W. Counsel for Amicus Curiae Suite 500 Washington, D.C. 20005 February 25, 1999 & ‘ % 7 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0226%3A10. Public record. Not legal advice.