Amicus Curiae Brief — Lorillard Tobacco Co. v. Reilly

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FEB 22 poo! -:-, is

Nos. 00-596 and 00-597 ei |

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Lorillard Tobacco Company; Brown & Willtaisou-Tobacco

Corporation; R.J. Reynolds Tobacco Company; Philip Morris

Incorporated; and U.S. Smokeless Tobacco Company,

Petitioners,

- and -

Altadis U.S.A. Inc., As Successor to Consolidated Cigar

Corporation and Havatampa, Inc.; General Cigar Co., Inc.;

John Middleton, Inc.; Lane Limited, As Successor To Tobacco

Exporters International (USA) Ltd.; L.J. Peretti Co., Inc.; Swedish

Match North America, Inc.; and Swisher International, Inc.,

Petitioners,

Thomas F. Reilly, Attorney General

of the Commonwealth of Massachusetts,

Respondent.

On WRIT OF CERTIORARI TO THE

UNiTED STATES COURT OF APPEALS FOR THE First CIRCUIT

BRIEF OF AMICI CURIAE AMERICAN ADVERTISING

FEDERATION AND CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA IN SUPPORT

OF PETITIONERS

WALLACE S. SNYDER DANIEL E. Troy

JEFFRY L. PERLMAN Counsel of Record

AMERICAN ADVERTISING FEDERATION KRISTINA R. OSTERHAUS .

1101 Vermont Avenue, N.W. WILEY, REIN & FIELDING

Suite 500 1776 K Street, N.W.

Washington, D.C. 20005 Washington, D.C. 20006

Rosin S. ConraD (202) 719-7000

NATIONAL CHAMBER LITIGATION

CENTER, INC. Counsel for Amici Curiae

1615 H Street, N.W.

_ Washington, D.C. 20062

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

Srrrrrerrrerereree reer eee eee eee eee

ARGUMENT

eRe See eee SSS ESSSSSSSESOHSSSHSHSSSHSESOSHSH OSES SSSHSSHSHSOSSSHSESESS

FULL PROTECTION OF COMMERCIAL

SPEECH IS CONSISTENT WITH THE

ORIGINAL UNDERSTANDING OF THE

FIRST AMENDMENT AND THE

PREVALENCE AND IMPORTANCE OF

ADVERTISING AT THE TIME OF THE

eee eee eSSSSSHHSSSSSSSSHTHSSSHSSSSSSSSHSSSHSHSESSSSSSSSESESES

A. Advertising Was an Integral Part of the

“Press” in Colonial America.

TURES EU LOCO e ee eee eee

B. The Absence of Advertising Restrictions Is

Consistent with the Colonial Conception of a

“Free Press” That Included Advertising.

1. The challenges to early Stamp Acts

evidence the colonial conception of a

“free press” including advertising.

2. State trade regulations restricting

unlawful products and services only

show that the colonial conception of a

“free press” included advertising.

3. Common law exceptions to free

commercial speech involving false or

misleading speech show that the colonial

conception of a “free press” included

SR ier a on ere

Il.

TABLE OF CONTENTS—Continued

4 Fully protecting advertising is consistent

with the Framers’ political philosophy,

which equated liberty and property...

THE PERVASIVENESS OF ADVERTISING

AND STATE LEGISLATIVE PRACTICE AT

THE TIME OF PASSAGE OF THE

FOURTEENTH AMENDMENT ARE

CONSISTENT WITH THE VIEW THAT

COMMERCIAL SPEECH IS ENTITLED TO

FULL FIRST AMENDMENT PROTECTION.

eteee

A. Commercial Speech Was an Integral Part of

American Life During Reconstruction.

B. State Legislative Practice During

Reconstruction Is Consistent with Full First

Amendment Protection for Truthful

Commercial Speech Promoting Lawful

Products and Services.

Poe PeU COCO SECC COS E UC C Cee eee)

LESSER PROTECTION FOR

COMMERCIAL SPEECH IS A

TWENTIETH-CENTURY PHENOMENON

THAT HAS ITS ORIGINS IN A

DISENCHANTMENT WITH ECONOMIC

LIBERTIES ANIX CONFUSION WITH

ECONOMIC SUBSTANTIVE DUE

PROCESS.

SERRE EERE E EEE E EEE EEE EEE EEE EEE EEE EE EEE EE EEE EES

A. The Pervasiveness of Advertising Grew in

the Early Twentieth Century.

B. Disenchantment with Advertising Became

Apparent as a Result of Reform Movements

and the Great Depression.

SORE REE E ERE E ETHER HEE E EE EE

TABLE OF CONTENTS—Continued

C. The Incorrect Association of Advertising and

Economic Liberties Led to the Misguided

Distinction Between Commercial and

TORE PCE COCO SECC)

IV. THIS PROPOSED INTERPRETATION OF

THE FIRST AMENDMENT WILL NOT

DRAMATICALLY ALTER THE COURT’S

FIRST AMENDMENT JURISPRUDENCE. 28

V. MASSACHUSETTS’ RESTRICTIONS ON

TRUTHFUL MESSAGES ABOUT A

LAWFUL PRODUCT ARE PROHIBITED BY

THE FIRST AMENDMENT. 29

POU eee OCU COC CCC Eee eee

TABLE OF AUTHORITIES

CASES Page

44 Liquormart, Inc. v. Rhode Island, 517 U.S.

PO EE icsisccccticadoissslaasionsncnbuanamadiaenancuiane 4, 28

Board of Trustees of the State University of

New York v. Fox, 492 U.S. 469 (1989) 3

Borrekins v. Bevan, 3 Rawie 23 (Pa. 1831)... 13

Central Hudson Gas & Electric Corp v. Public

Service Commission, 447 U.S. 557 (1980)... 3, 28, 29

City of Cincinnati v. Discovery Network, Inc.,

a carlannid cists, Oe 28

Edenfield v. Fane, 507 U.S. 761 (1993) ooo. cecessesseeseeoes 28

Gerawan Farming, Inc. v. Lyons, 101 Cal. Rptr.

ORF TE ii lies saamenmmanmamgulmueieats 5

Greater New Orleans Broadcasting Association

V. BL, SAF WB. ETS CEPI asa ccacssassennnatasanshnensans 28

Grosjean v. American Press Co., 297 U.S. 233

CMO ictshatiasoaiscceccdianaaledebeal: aiden aiaaiacuntadelantie 1]

Halter v. Nebraska, 205 U.S. 34 (1907) ooo ccceeeeees 26

Eimann v. Soldier of Fortune Magazine, Inc.,

880 F.2d 830, 837 (Sth Cir. 1989) ooo ceseeseee 29

Ex parte Jackson, 96 U.S. 727 (1877) ooo. eccsssessesesseesess 22

The King v. Higgins, 102 Eng. Rep. 269

re HPT aaiisainspsicasiedueschccceacsciaseibied es Uieipabianhdeseseses 16

Needham v. Proffitt, 41 N.E. 606 (Ind. 1942) 27

Pittsburgh Press Co. v. Pittsburgh Commission

on Human Relations, 413 U.S. 376 (1973)... 16

Posadas de Puerto Rico Associates v. Tourism

Co. of Puerto Rico, 478 U.S. 328 (1986) 28

TABLE OF AUTHORITIES—Continued

Page

Rubin v. Coors Brewing Co., 514 U.S. 476

a acallaanisin aiden ninnataniadiannnl 28

Seattle v. Proctor, 48 P.2d 238 (Wash. 1935) oo. 27

State ex rel. Booth v. Beck Jewelry Enterprises,

Boar, 43 E26 GE2 Ge. BOGE) oa ncssncessnescesveenens 27

Stromberg v. California, 283 U.S. 359 (1931)... 26

United States v. Carolene Products Co., 304

as I I i ccctivencensnasitentnancsnscinisnniinbiicigmenseni 27

Valentine v. Chrestensen, 316 U.S. 52 (1942) 00... a, a7

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 U.S.

PT ii sistas nceceeecsliniginseoncaicisnadmeiienntoneeciibidaniniiceene 29

Ware v. Ammon, 278 S.W. 593 (Ky. Ct. App.

a aR csinpnseniieraeinseeieninnann 27

West Coast Hotel Co. v. Parrish, 300 U.S. 379

ON iis ah asciscnaiiehirnitderiancaibdenseidaipenisnniananeas 27

FEDERAL CONSTITUTIONAL

PROVISIONS AND STATUTES

Act of June 8, 1872, ch. 335, 17 Stat. 283 oe 22

U.S. Constitution, Amendment OX ooo eseeecseeseeneneenees 1]

U.S. Constitution, Amendment Xoo... eesseseeeeeseeneetenees 1]

STATE STATUTES

Act for the Better Making and Measuring of Malt,

1700, The Laws of the Commonwealth of

Massachusetts (1807) 12

TABLE OF AUTHORITIES—Continued

Page

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 (1798) ooo. .cessssceceeeeeceeeeees 14

Act of February 13, 1797, The Laws of the State

OO PROUT SONI CI aaiisisatacees ctinaaesstdiaridaneisnansabitaons 13

Act Against Horse Racing, 1820, A Digest of the

Acts of the General Assembly of Pennsylvania

(1841) 14

CORRES EE HEHEHE TEE ESE EE EE TESS ESEEEESEEESESESEH ESSE SEE EEE EEE ES

Act to Lay A Duty on Strong Liquors, and For

Regulating Inns and Taverns, 1801, Laws of the

State of New York (1802) 12

SSPE SERRE SESE HESS RES EE ESSE ESSERE SE EEE ESE ES

Act for the More Effectual Suppressing and

Preventing of Lotteries, 1762, A Digest of the

Acts of the General Assembly of Pennsylvania

(1841) 14

SECO O SHEESH EEE EEE ESET EEE EEEEEEEE SHEESH SEES ESSE ESEE EEE SES EESEEEEEEEE ES

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 (1790) 13

SSS SHHSSS SETH SE SES EE SESE SEE EEE EEE EES

Act to Prevent Horse Racing, 1803, The Public

Statute Laws of the State of Connecticut )

(1808) . 14

POPES E HEHEHE EEE SEES EEE EE EEE EE EE ESSE TESTES EEEEE EEE SEE SEES ESSE SESE EES

Act to Prevent Private Lotteries, to remit certain

Penalties, and to Repeal the Acts therein

Mentioned, 1783, Laws of the State of New

York (1802) 13

SECO E ESTEE TEESE ESSE EE ESSE SOS ESESESEEESEE SESE EES ESSE SE EESE EE

Ass for the Prevention of Lotteries, 1792, The

Laws of Maryland (1811) 13

TABLE OF AUTHORITIES—Continued

Page

Act for Punishing and Preventing Oppression, 1635

(amended 1730), The Public Statute Laws of

NPR cise siciionnsiensrbernnnnveniarsinnanaansatiss 12

Act to Regulate the Exportation of Potash and Pearl

Ash, 1792, The Laws of Maryland (1811)... 12

Act to Regulate Flax-Feed, Pot-ash and Pearl Ash

for Exportation, 1785, The Laws of the State of

OOF TUNE FEED ssscsusnnnsnssiseascsasansserenennseniens 12

Act to Regulate the Practice of Physic and Surgery,

1783, Laws of the State of New Jersey (1783)............. 13 -

Act Regulating the Admission of Attornies, 1785,

The Laws of the Commonwealth of

Massachusetts (1785) 13

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 Massachusetts (1807) 0... 12

Act Regulating Licensed Houses, 1791, The Laws

of the State of New Hampshire (1797) 0. ..esesseeseee 12

Act for Regulating Ordinaries, Houses of

Entertainment and Retailers of Spirituous

Liquors, 1798, The Public Acts of the General

Assembly of North Carolina (1804) 12

See SeSE SS KS SESE SS SES SESE SHS ESS

Act for the Suppression of Lotteries, 1785, The

Laws of the Commonwealth of Massachusetts

(1807), amended by Act of Feb. 28, 1801 0... 14

Act for the Suppressing of Lotteries, 1791, The

Laws of the State of New Hampshire (1805) 0000.0... 13

Act for Suppressing and Preventing of Private

Lotteries, 1762, The Public Law of the State of

South Carolina (1790) 14

PTUPTTTECE LI eee

TABLE OF AUTHORITIES—Continued

‘ Page

Bill of Rights art. 22 (N.H. 1783) ooo. cessscsssssecssssssesoeees 12

California Penal Code § 311(4) (1872) ooo ccececcseeseeseees 22

California Penal Code § 317 (1872) ooo ecccccesseseeseeseees 21

California Penal Code § 323 (1872) ooo eecessesseseeeesee 21

Collection of All Such Acts of the General

Assembly of Virginia (1803) ooo. eeceseesseeees aula 1]

Compiled Laws of Kansas ch. 31, art. 14, § 338

RM iadicssstikcis Sela icra cede hndsclllailiblatitadicaseacdl esata 22

Compiled Laws of Kansas ch. 31, § 342 (1885). 21, 22

Compiled Laws of Nevada § 2498 (1873) 0... cscsssse 21

Compiled Laws of the Territory of Utah, Penal

Code tit. 9, ch. 8, § 162(4) (1876) 2s 21, 22

Compiled Laws of the Territory of Utah § 2002

SPOT iin ssccispecllep basins nidioaebaaancondaseenllabileckesonsese 21

Connecticut General Statutes tit. 12, ch. 2, § 25

cans Ee Ne NFRD OM SA EF 21

Connecticut General Statutes tit. 12, § 150 (1866) 21

Declaration of Rights (Del. 1776) ooo. eccesessseeseeseeseeseesee 12

Declaration of Rights (Md. 1776) ooo. see anal 12

Declaration of Rights (Mass. 1780) ooo... ecceseesessessesseeeees 12

Declaration of Rights (N.C. 1776) ooo .ceecesssssssessessesseeeees 12

Declaration of Rights (Pa. 1776)... esessessessseesesseeseeeees 12

Declaration of Rights § 7 (S.C.1778) ooo ccsssessesseeseeeees 12

Declaration of Rights ch. I, art. XIII (Vt. 1793) 12

Declaration of Rights (Va. 1776) ooo... essessesseesesseesess 12, 16

Delaware Revised Statutes ch. 98, v. 12, § 6

(1874) 21

SPOS H ESE OHH HE TEESE ES EE SESE EE SESE SESE ES ESES ES ESE EEEEESESEE SES ESESEE ES

TABLE OF AUTHORITJES—Continued

Page

Digest of the Acts of the General Assembly of

PRI CEE sss cases acsinvesasancncvavmmnennnersarens 1]

Digest of Laws of Florida ch. 59, § 10 i SES? 21

Digest of Laws of Florida ch. 80, § 4 (1881) oe. 21

Georgia Constitution of 1798 art. TV, § Vio esesseseeseees 12

Heron: Codie § 2063 C075)... csaneseceserscsssvonssnsusunnsenensnens 21 -

Kentucky Revised Statutes ch. 28, art. 21, § 4

re a icrensennnianeennseintiinn 21

Laws of Maryland (1811) ...............sscssssscosssseosssoeessosennsennes 1]

The Laws of the Commonwealth of Massachusetts

from November 28, 1780 to February 23,

SF as ii ementererimenions 11,14

The Laws of the State of New Hampshire (1797) 0000000... 1]

The Laws of the State of New Jersey (1800) oo. 1]

Laws of the State of New York (1802) ooo... .eesesesseseees 1]

Laws of the State of Vermont (1797) ooo... .eeseseseseeeeeeeeees 1]

Maine Revised Statutes tit. 11, ch. 128, § 13

ila eRe PRCT WERE =) er Ea CeO 21

Maryland Code art. 30, § 114 (1860) ooo ececeseeseees 21

Maryland Laws ch. 179, § 2 (1868) ooo. esssseeeeeeeenees 21

Massachusetts General Statutes ch. 165, § 10

"| ___AARRRR ee ien R OC Se nnn 21

Mississippi Revised Code § 2605 (1871) ooo eeeeesseeeeee 21

New Jersey Revised Statutes, Crimes § 44 (1874) oo... 21

New York Revised Statutes ch. 20, tit. 8, § 53

OTST eT NTT nee Oe oer 21

New York Revised Statutes pt. 4, ch. I, tit. 6, § 77

(1875) 22

TABLE OF AUTHORITIES—Continued

Page

New York Revised Statutes pt. 4, ch. 1, tit. 6, § 78

PPI ciinssaceidietoasdegunedccaennesiaenaemaaiultneiebbintaseapancaaiin 21

Ohio Revised Statutes ch. 2732, § 1 (1860 &

PI sssslnsisidnass aig aliseisaetaunctukchobis ocsaciieadaaasdidcaiaitees 2"

Oregon General Laws, Crim. Code, ch. 8, § 661

cit, PR NRT EN Nee RON A OnE AACE Se 21

The Public Acts of the General Assembly of North

woogie, Pe TR TOD OE ARTI 1]

The Public Law of the State of South Carolina

GR ciaciuichanaisecel i baci a a re i]

The Public Laws of the State of Rhode Island and

Providence Plantations (1798) ooo. ccccccssssessseseeeeeees I]

The Public Statute Laws of the State of Connecticut

Corea scischcsisscnidebachacdiassutestaicdeaion uneusibiodanscaadansemsetaas 1]

Rhode Island General Statutes ch. 232, § 23

i RT TE Ee nN NSW ROL Et 21

Vermont General Statutes ch. 119,§ 7(1870) 21

West Virginia Code ch. 149, § 11 (1868) oe 22

MISCELLANEOUS

Bruce Ackerman Constitutional Politics/

Constitutional Law, 99 Yale L.J. 453 (1989). 25

3 William Blackstone Commentaries (1769) 15

4 William Blackstone Commentaries (1769). 15

David S. Bogen The Origins of Freedom of

Speech and Press, 42 Md. L. Rev. 429

(1983) 12

D. Boorstin, The Americans: The Colonial

Experience (1958) 8

SOSH ERE REESE EEE EEEEEEEE EE ESSE EE EEE HEHE SESE HESS EE EOE

TABLE OF AUTHORITIES—Continued

6 The Complete Anti-Federalist (Herbert J.

Storing ed., 1981) 10

Verner W. Crane, Introduction to Benjamin

Franklin's Letters to the Press, 1758-1775

(Verner W. Crame odd., 1950) ..........c.cesssssssnssessessscsesense 5

Edwin Emery & Michael Emery, The Press and

re accasiccncesicatnnniertitniensinctibencaneniagrnsinintiaannnitan 5

G. Allen Foster, Advertising: Ancient Market

Pince te Tevet CRIB 7) os ascsisncssennsessesnsincresstannssvns 20

George French, 20th Century Advertising (1926)............. 23

Walton H. Hamilton, The Ancient Maxim Caveat

Emptor, 40 Yale L. Rev. 1133 (1931) oo 13

Richard Hofstadter, The Age of Reform (1955) ooo... 24

Carol S. Humphrey, “That Bulwark of Our

Liberties”: Massachusetts Printers and the

Issue of a Free Press, 1783-1788, 14

i Pt |e | ETT 1]

Matthew Josephson, The Robber Barons (1934) .............. 24

Morton Keller, Affairs of State (1977) ooo. .essesseseeseeees 19

Humard J. Kenner, The Fight for Truth in

EN csiciinihaisssinsientapniaennsiennisisiicnieannianis 24

Douglas W. Kmiec & John O. McGinnis, The

Contract Clause: A Return to the Original

Understanding, 14 Hastings Const. L.Q. 525

RRR e ESSERE ESSE ESSE SSE EEEESESEET SHSEESSSE SSS SS SSE SESS ESSE SESS EH HEE ESET

Letter XVI, Jan. 20, 1788, in An Additional

Number of Letters from the Federal Farmer

to the Republican (1962) 18

PTeETPTETOCEOOIOC OC eee

TABLE OF AUTHORITIES—Continued

I acichahedsecbeaisesieilapiuassataaiendanaaeitvoinciancbiiain seman

Leonard W. Levy, Freedom of the Press from

Zenger to Jefferson (Leonard W. Levy ed.,

1996)

John Locke, The Second Treatise’ on

Government (Thomas P. Peardon ed., Bobbs-

Mermill Ist ed. 17th prtg.1975) (1690)

James Madison, 14 Papers of James Madison

(Robert A. Rutland & Thomas Mason eds.,

a eeie lal eA adececaeeadumsanisnientioncnews

John O. McGinnis, The Once and Future

Property-Based Vision of the First

Amendment, 63 U. Chi. L. Rev. 49 (1996)

Kent R. Middleton, Commercial Speech in the

Eighteenth Century, in Newsletters to

Newspapers: Eighteenth Century

Journalism 277 (Donovan H. Bond & W.

Reynolds McLeod eds., 1977)

SPREE EERE EERE SESE EEE EE EEE EEE EEE EEE EEE EEE SEES EES ESEESEEE ESSE ESE HERES

eee ee eeeeseeereeeeee

Frank Luther Mott, American Journalism—A

History of Newspapers in the United States

Through 250 Years: 1690-1960 (3d ed.

1963) 6, 7,

SERRE EERE ESSE E OEE EEE EEE EE EERE EEE EE EEE EESEEEE SESE EE EE ES

Enc Neisser, Charging for Free Speech: User

Fees and Insurance in the Marketplace of

Ideas, 74 Geo. LJ. 257 (1985) ooo ceeccsesssesneesneeneens

15 The Papers of Thomas Jefferson 367 (J. Boyd

scan a aipnng Oa ee Ta Ca AE RCRD

Rudolph J.R. Peritz, Competition Policy in

America, 1888-1992 (1996)

SSSR SHEESH HES ERESESE SESE SESE EE EEE EES

TABLE OF AUTHORITIES—Continued

Page

Frank Presbrey, The History and Development of

PE I a erisinennsisenscvimenarenmmnnmeaal passim

The Press and the American Revolution (B.

Bailyn & J.B. Hench eds., 1980) ooo... ..cecccecssssseesteenen 9

Clinton Rossiter, Seedtime of the Republic (1953)... 17

Arthur Schlesinger, Sr., Prelude to Independence:

The Newspaper War on Britain 1764-1776

ITT i oiticsencios costae ei hcesaaeineaeiaensania 9, 10

Jeffrey A. Smith, Printers and Press Freedom:

The Ideology of Early American Journalism

EE eee ae lm n 7, 17, 18

Joseph Story, Equity Jurisprudence (1836)... 15

John Trenchard & Thomas Gordon, 1 Cato’s

Letters (Ronald Hamow ed., Liberty Classics

I I ls sl lasumeeaeansrite 17

Daniel. E. Troy, Advertising: Not Low Value

Speech, 16 Yale J. Reg. 85 (1999) ooo esssecsecnesesees 5

William F. Walsh, A History of Anglo-American

tcc ussaiscddicchannweviciliaemaniansioninoniis 25

James Playstead Wood, The Story of Advertising

EE en ee ee passim

2 Writings of Benjamin Franklin (Albert Henry

Smith ed., 1907) 9

SERRE REE EERE EEE EEE EEE EEE EERE EEE ESET EE EE HESS EEE EEE SEES

Lawrence C. Wroth, The Colonial Printer (1938)

David Yassky, Eras of the First Amendment, 91

Colum. L. Rev. 1699 (1991) 25, 27

SPSS RETR RE SESE REESE RESET EEE T EEE

This brief is respectfully submitted pursuant to Rule 37 urging

the Court to reverse the decision below of the United States

Court of Appeals for the First Circuit on the grounds thot

Massachusetts’ limitations on the public display of tobacco

advertising violate the Petitioners’ rights under the First

Amendment to the Constitution of the United States.’

INTEREST OF AMICUS CURIAE

The amici herein represent thousands of advertising agencies,

advertisers, and others who participate in the advertising industry,

as well as business organizations and individuals interested in

preserving freedom of speech. It is from this broad-based,

national perspective that amici present their views to the Court.

The amici are:

The American Advertising Federation (“AAF”), a national

trade association that represents virtually all elements of the

advertising industry. Among AAF’s members are producers and

advertisers of consumer products, advertising agencies, magazine

and newspaper publishers, radio and television broadcasters,

outdoor advertising organizations, 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. AAF

members use virtually all forms of media to advertise and

communicate with consumers throughout the United States.

The Chamber of Commerce of the United States of America

(“Chamber”), the world’s largest federation of business

organizations and individuals. The Chamber represents an

underlying membership of more than three million businesses and

organizations, with 140,000 direct members of every size, in

every business sector, and from every geographic region of the

country. An important function of the Chamber is to represent

the interests of its members by filing amicus briefs in cases

' Counsel for both Petitioner and Respondents have consented to the

participation of the amici in this case, as evidenced by letters filed with

the Court pursuant to Supreme Court Rule 37. No party wrote or

financially contributed to the preparation of this brief.

involving issues of national concern to American business. This

brief is filed because full First Amendment protection to truthful

commercial messages about lawful products and services is a

matter of profound importance to the Chamber’s members.

SUMMARY OF ARGUMENT

The text and history of the First Amendment, as well as the

“Jong 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 noncommercial speech. The text, of course, does

not distinguish between commercial and noncommercial 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

unlawful activities. 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 was barred only where it

publicized unlawful products, services, or activities. In addition,

towards the end of the century, some restrictions limiting false

and misleading advertising were adopted. This Court’s treatment

of truthful advertising during and immediately after Reconstruction

did not distinguish between 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

on commercial speech under the rubric of substantive due

process. This confusion of categories caused the Supreme Court

in Valentine v. Chrestensen, 316 U.S. 52 (1942),

erronevusiy ‘weal tTestrictions on advertising a3 economic

regulations subject only to rational basis scrutiny.

That error, which is in part perpetuated by this Court’s

continued distinction between commercial and noncommercial

speech, conflicts with the “long accepted practices of the

American people.” Those practices—particularly state legislative

practice at the times the First and Fourteenth Amendments were

ratified—support the contention that truthful commercial

messages about lawful products and services are entitled to full

First Amendment protection. Under that standard, the advertising

restrictions at issue here are plainly unconstitutional.

ARGUMENT

This case involves a challenge to Massachusetts’ restrictions

prohibiting virtually all outdoor advertising of tobacco products

(including indoo: advertising visible from the street) within a

broadiy defined distance of any “park,” “playground,” or

“school,” as well as certain point-of-sale advertising regardless of

its outdoor visibility. These rules apply even if the ads are truthful,

even though they concern a lawful product, and even if most of

the people who are exposed to a particular advertisement are

adults. Massachusetts argues that these regulations are

constitutional because of the need to protect children from

positive images of tobacco products. The State’s argument stems

from the perception that commercial speech occupies some

“subordinate position in the scale of First Amendment values.”

Board of Trustees of the State Univ. of N.Y. v. Fox, 492 U.S.

469, 477 (1989). This “subordinate position” is exemplified by

this Court’s decision in Central Hudson Gas & Electric Corp.

v. Public Service Commission, 447 U.S. 557 (1980). Amici

demonstrate herein that, throughout most of this nation’s history,

the American people made no distinction between commercial

and noncommercial speech.

Amicus AAF previously addressed the importance of

advertising to the historical development of the American press

and the concept of free speech. See, e.g., Brief of Amici Curiae

American Advertising Federation, et al., 44 Liquormart, Inc. v.

Rhode Island, 517 U.S. 484 (1996) (filed July 6, 1995).

Because those points were not fully addressed in the 44

Liquormart opinion, amici bring them again to the Court’s

attention. In 44 Liguormart, the Court acknowledged the

importance of historical context in unanimously striking down a

state prohibition on advertising of liquor prices. See id. at 495

(plurality opinion of Stevens, Kennedy, Souter & Ginsburg, J.J.).

Justice Thomas, relying in part on the historical analysis of amici,

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 522 (Thomas, J.,

concurring in part and concurring in the judgment) (citing Brief of

Amici, American Advertising Federation, et a/.).

Justice Scalia, concurring in the judgment, noted his

“discomfort with the Central Hudson test,” and his “aversion

towards paternalistic governmental policies that prevent men and

women from hearing facts that might not be good for them.” Jd.

at 517 (Scalia, J., concurring in the judgment). Justice Scalia

found the historical material submitted by AAF, ef al.,

“consistent with First Amendment protection for commercial

speech, but certainly not dispositive.” Jd. He stated that “the long

accepted practices of the American people” were central to

interpreting the First Amendment, including (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

regarding state regulation of advertising after the Fourteenth

Amendment, and before this Court’s entry into the field.” Jd. at

517-18.

In this brief, amici curiae review the relevant history in an

effort to address these issues. The amici respectfully submit that

the state legislative history and practice, like the available

evidence surrounding the understanding of the generation of the

Framers, support the proposition that, until relatively recently, the

American people did not recognize a distinction in the protections

afforded “commercial” and “noncommercial” speech, other than

the advertising of illegal activities and the protections afforded

against fraudulent or misleading claims.’

I. FULL PROTECTION OF COMMERCIAL

SPEECH IS CONSISTENT WITH THE

ORIGINAL UNDERSTANDING OF THE FIRST

AMENDMENT AND THE PREVALENCE AND

IMPORTANCE OF ADVERTISING AT THE

TIME OF THE FRAMING.

The development of a free press and of a commercial,

advertising-driven press are inextricably linked. See 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 modem distinction between “commercial”

messages and other forms of speech would not have occurred to

colonial Americans.

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 fallacy of

differentiating for constitutional purposes between commercial

and noncommercial speech. American newspapers began to

emerge only as colonial business and industry began to grow. See

Edwin Emery & Michael Emery, The Press and America 18

(1978). As small industries developed a need to inform the public

of their wares, printers began publishing newspapers to spread

that information. As one commentator observed, “[w]ell before

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,

? For a more comprehensive discussion of the historical origins of the

First Amendment and its application to commercial speech, see Daniel E.

Troy, Advertising: Not Low Value Speech, 16 Yale J. Reg. 85 (1999). The

California Supreme Court recently relied on the historical evidence

presented here and in that article to find commercial speech entitled to full

protection under the California Constitution. See Gerawan Farming, Inc.

v. Lyons, 101 Cal. Rptr. 2d 470 (2000).

The Story of Advertising 85 (1958). Advertising was a major

impetus and means for establishing regularly published

newspapers in colonial America.

The majority of advertisements appearing in colonial

newspapers would be considered “commercial speech” today.

“The colonial press regularly carried reputable 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: Eighteenth-Century Journalism

277, 282 (Dononvan H. Bond & W. Reynolds McLeod eds.,

1977). Without these advertisements, the colonial press so

important to the Revolutionary cause would have been less

vibrant, if it existed at all because, like today, “[a]dvertising

represented the chief profit margin in the newspaper business.”

Frank Luther Mott, American Journalism—A History of

Newspapers in the United States Through 250 Years: 1690-

1960 56 (3d ed. 1963).

Among the goals of the first attempted colonial newspaper

was the promotion of “Businesses and Negotiations.” Publick

Occurrences, Both Foreign and Domestick, Sept. 25, 1690, at

1, quoted in Frank Presbrey, The History and Development of

Advertising 119 (1929). The inaugural 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

Reasonable Rate.

Boston Newsletter, Apr. 24, 1704, quoted in Wood, supra, at

45. The next week’s issue of the Boston Newsletter 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. Jd. 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 political 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, Oct. 7, 1756 quoted in Jeffrey 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. See Lawerence 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. See A. Lee, The Daily Newspaper in America 32

(1937).

The first daily newspaper in the United States was established

in 1784 primarily as a medium for advertising. When the

Pennsylvania Packet and General Advertiser initially

appeared, ten of its sixteen columns were filled with

advertisements. See 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

iayout 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. See Middleton, supra,

at 281. As one advertising historian 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 pminter-historian Isaiah

Thomas, editor of a 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 modem times,

beyond all preceding example, abound.

History of Printing in America with a Biography of Printers,

and an Account of Newspapers (1810), quoted in D. Boorstin,

The Americans: The Colonial Experience 328 (1958). As a

source of information to the population and income to colonial

printers, advertising was influential and plentiful during the latter

part of the colonial era.

B. The Absence of Advertising Restrictions Is

Consistent with the Colonial Conception of a

“Free Press” That Included Advertising.

1. The challenges to early Stamp Acts

evidence the colonial conception of a

“free press” including advertising.

Given the eighteenth-century equation of liberty and property

and the prevalence of advertising in colonial America, 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 catalysts of the American Revolution involved a

defense of advertisements.

As this Court has recognized, one of the best-known

statements in defense of a free press—Benjamin Franklin’s

famous Apology for Printers—was written in mse to an

attack on an advertisement printed by Franklin.” Onginally

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 in opinion, both Sides

ought equally to have the Advantage 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 Franklin, 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 “marketplace

of ideas,” came in response to an attack on a classic example of

what is now called 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 commentator noted,

“(Bly any standard {this amount] was excessive, since the

publisher himself received only from 3 to 5 [shillings] and still less

for repeated insertions.” Arthur Schlesinger, Sr., Prelude to

Independence: The Newspaper War on Britain 1764-1776 68

> In 1731, Benjamin Franklin printed a politically incorrect advertising

notice that was distributed as a stand-alone commercial handbill. The

paper 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.” An

Apology for Printers (1731), reprinted in 2 Writings of Benjamin

Franklin 176 (Albert Henry Smith ed., 1907). This handbill outraged the

local clergy (the “Black Gowns”). In response to attacks, Franklin

published his Apology which was at that time, “{b]y far the best known

and most sustained colonial argument for an impartial press.” S. Botein,

“Printers and the American Revolution,” in The Press and the American

Revolution 20 (B. Bailyn & J.B. Hench eds., 1980).

(1966). This tax galvanized the colonial press against the British

government:

Stamp duties also, imposed on every

commercial instrument of writing—on literary

productions, and, particularly, on

newspapers, which of course, will be a great

discouragement to trade; an obstruction to

useful knowledge m_ arts, _ sciences,

agriculture, and manufactures; 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) (emphasis in original). The opposition of

newspapers was based largely, if not primarily, on their concern

that the tax encroached on the freedom of expression.* Thus, the

repeal of the Stamp Act of 1765 one year after it had been

enacted “was a powerful victory for an independent 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 newspapers and

newspaper advertisements. See Eric Neisser, 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

132-36 (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,

* In 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 Conn.

Gazette, quoted in id. (enjoining its readers that “[t]he press is the test of

truth, the bulwark the public safety, the guardian of freedom, and the

people ought not to sacrifice it”); New York Gazette or Wkly Post-Boy,

Nov. 7, 1765, quoted in id. at 77 (flaunting its motto, “The United Voice of

all His Majesty’s free and loyal subjects in America—LIBERTY,

PROPERTY, and no STAMPS.”) (emphasis in original).

1786, quoted in Carol S. Humphrey, “That Bulwark of Our

Liberties”: Massachusetts Printers and the Issue of a Free

Press, 1783-1788, 14 Journalism Hist. 34, 37 (1987). The 1786

repeal of the ad tax was considered a triumph for press freedom.

Id.; 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

unlawful products and services only

show that the colonial conception of a

“free press” included advertising.

The practices of state legislatures around the time of the First

Amendment’s ratification further evidence that the Framers’

generation did not distinguish between the constitutional status of

commercial and noncommercial speech.° Indeed, state statutes in

effect at this time did not restrict truthful commercial messages

about lawful products or services.° Rather, consistent with the

* All powers not delegated to Congress were reserved to the people

and the states. See U.S. Const. amends. IX, X. The First Amendment

explicitly limited Congress’s authority over speech and 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.”

® 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 Massachusetts 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 Carolina (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 Gener’ Assembly of Virginia (1803). All compilations

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.

Early statutes show efforts to regulate merchants and

shopkeepers,®* liquor and taverns,” potash,'° malt,'’ a variety of

commodities,'* attomneys,'* and doctors.'* Among other things,

(..continued)

are available at The Edward Bennett Williams Law Library, Georgetown

University Law Center. Contemporaneous compilations for Delaware and

’ Declaration of Rights para. 23 (Del. 1776); Ga. Const. of 1798 art. IV,

§ V; Declaration of Rights para. 38 (Md. 1776); Declaration of Rights para.

XVI (Mass. 1780); Bill of Rights art. 22 (N.H. 1783); Declaration of Rights

para. 25 (N.C. 1776); Declaration of Rights para. 12 (Pa. 1776); Declaration

of Rights § 7 (S.C. 1778); Declaration of Rights ch. I, art. XIII (Vt. 1793);

Declaration of Rights para. 12 (Va. 1776). Pennsylvania and Vermont

connected that provision to protection for freedom of speech. See

generally David S. Bogen, The Origins of Freedom of Speech and Press,

42 Md. L. Rev. 429, 441 n.55 (1983). Of the remaining four states in

existence when the Bill of Rights was ratified, two—Rhode Island and

Connecticut—had not drafted state constitutions; two others—New York

and New Jersey—did not provide specific state constitutional guarantees

of freedom of press and speech. See Leonard W. Levy, Emergence of a

Free Press 189 (1985).

* See, e.g. Act for Punishing and Preventing Oppression, 1635

(amended 1730), The Public Statute Laws of Connecticut 544 (1808).

® 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).

'° See, e.g., Act to Regulate the Exportation of Potash and Pearl Ash,

1792, The Laws of Maryland 191-92 (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).

'' See, e.g., Act for the Better Making and Measuring of Malt, 1700,

The Laws of the Commonwealth of Massachusetts 186 (1807).

'? 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 Massachusetts 320-23 (1807); Act to

these statutes required licenses, prevented charging of

unreasonable prices, and set standards for inspection and

weighing of commodities. The statutes surveyed, however, reveal

no restrictions on the right of these regulated industries to

advertise lawful products and services. Sellers were left to their

own creativity in seeking to attract attention to their wares. And

buyers were protected 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, 27 (Pa.

1831) (“[A] sample, or description in a sale note, advertisement,

bill of parcels, or invoice, is equivalent to an express warranty

that the goods are what they described.”); see also infra Section

1.B.3; see generally Walton 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.’ Massachusetts, for example,

(..continued)

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).

'3 See, e.g., Act Regulating the Admission of Attornies, 1785, The Laws

of the Commonwealth of Massachusetts 318-19 (1785).

'* See, e.g., Act to Regulate the Practice of Physic and Surgery, 1783,

Laws of the State of New Jersey 7-8 (1783).

'S See, e.g., Act for the Prevention of Lotteries, 1792, The Laws of

Maryland 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, § 1, 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 advertisements of or concerning such lottery”);

Act to Prevent Private Lotteries, to remit certain Pena!ties, and to Repeal

the Acts therein Mentioned, 1783, Laws of the State of New York 35-38

enacted a statute in 1785 declaring that, with respect to

unauthonized—and therefore illegal—lotteries, the act imposed

penalties separate fines for setting up lottery and “aiding 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 of Lotteries, 1785, The Laws

of the Commonwealth of Massachusetts 252-53 (1807),

amended by Act of Feb. 28, 1801, id. at 8-9 (specifying a fine

to be levied upon anyone who “shall aid and assist in any lottery

established, or erected in any other of the United States, by

advertising any Tickets of such lottery for sale, or by publishing

the scheme for any such lottery’).

A handful of states prevented the advertisement of other illegal

activities. For example, Connecticut and Pennsylvania prohibited

staging and advertising horse races. See 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 advertising in general.

(..continued)

(1802) (providing penalties for being “in any ways concerned” with

lotteries not authorized by the state, including “printing, writing, or any

other ways publishing an account thereof”); Act for Suppressing and

Preventing of Private Lotteries, 1762, The Public Law of the State of

South Carolina 256-67 (1790) (fining anyone “who shall make, write, 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). See 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 causing to be advertised any lottery).

3. Common law exceptions to free

commercial speech involving false or

misleading speech show that the

colonial conception of a “free press”

included advertising.

The First Amendment was adopted against the background 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 (1769). Justice Joseph Story’s treatise

Equity Jurisprudence addressed that “old head of equity,” the

law of misrepresentation, in detail:

Where the party intentionally, or by design,

misrepresents a material fact, or produces a

false impression, 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 demonstrates 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: “The people shall not be deprived or abridged of

their right to speak 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 offense to “procure,

counsel, or command another to commit a crime.” 4 William

Blackstone Commentaries *36 (1769) (defining an accessory

before the fact); The King v. Higgins, 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... seveial cases.””); see generally Pittsburgh

Press Co. v. Pittsburgh Comm'n on Human Relations, 413

U.S. 376 (1973). Advertising unlawful 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 philosophy, which

generally equated liberty and property nghts. 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 nght of the individual.” John O. McGinnis, The

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 nights were

seen as essential parts of an individual’s liberty, an understanding

derived from the wntings 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 Ist ed. 17th prtg. 1975) (1690).'° 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 without

'© George Mason’s Virginia Declaration of Rights evidences 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.” Declaration of Rights para. 1 (Va. 1776).

the enjoyment of the other.” Boston Newsletter, Feb. 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 expression,

Cato articulated the importance of free speech and its

inextricable link with property nghts:

This sacred Privilege is so essential to free

government, 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 anything else his own.

John Trenchard & Thomas Gordon, 1 Cato’s Letters 110

(Ronald Hamow ed., Liberty Classics ed. 1995) (1720-23)

(Essay No. 15, Of Freedom of Speech: That the Same is

Inseparable from Publick Liberty, Feb 4, 1720).

between the value of commercial and

noncommercial speech thus would never have occurred to the

Framers, who essentially regarded all rights, including the nght 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]

embraces every thing to which a man may

attach a value and have a right; and which

leaves to every one else the like advantage.

'7 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. See Smith, supra, at 25. 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 Leonard W. Levy, Freedom of the Press from

Zenger to Jefferson 3 (Leonard W. Levy ed., 1996)).

In the former sense, a man’s land, or

merchandize, 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) (1792) (emphasis in original).

This linkage of liberty and property nghts strongly suggests

that colonial Americans viewed the First Amendment as

protecting far more than political speech. As one contributor

writing under the pseudonym ‘Philalethes” declared in Boston’s

Herald of Freedom in 1788, that Americans:

are nurtured in the ennobling idea that to think

what they please, and to speak, write and

publish their sentiments with decency and

independency on every subject[. This]

constitutes the dignified character of Americans.

Boston Herald of Freedom, Sep. 15, 1788, quoted in Smith,

supra, at 19. Commercial matters were to be counted among the

“subjects” to which the freedom of speech obtained. As leading

AntiFederalist Richard Henry Lee said in his demand for a bill of

rights, “A free press is the channel 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 the recognition

that the Framers sought to guarantee advertising as a critical part

of the press, the text of the First Amendment does not distinguish

between commercial and noncommercial aspects of the press.

Il. THE PERVASIVENESS OF ADVERTISING AND

STATE LEGISLATIVE PRACTICE AT THE

TIME OF PASSAGE OF THE FOURTEENTH

AMENDMENT 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 that truthful

messages about lawful 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

restrictions 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.'*

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 illustrate, 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. See id. at 166-

167; Mott, supra, at 397-98, 593-94. Only the intense interest

in the Civil War supplanted advertising as the front-page material

in most papers. See Mott, supra, at 397; Presbrey, supra, at

259. Nonetheless, even in 1869, the New York Herald typically

'8 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. The Territorial Codes of Utah, Washington, Wyoming, and

New Mexico were also examined. The State Code of Wisconsin could not

be found, but the codes of the other thirty-seven states admitted to the

union by 1880 were examined.

held eight columns of news, and fifty columns of advertising. See

Wood, supra, at 169.

Although the Civil War may have pushed advertising from the

front page, advertising’s demonstrated ability to sell Union war

bonds led to a vast expansion in its use. See Presbrey, supra, at

253. A year after the Civil War ended:

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 advertising signs.

Wood, supra, at 182; see Presbrey, supra, at 255.

Advertising’s prominence also led to other innovations

including the first advertising agent in 1841, the first newspaper

directory in 1869 and the first market survey in 1879. See 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, philosophers and warriors of the

land are as yet unheard of; there is instant

recognition of Higg’s saleratus and Wigg’s soap

even where the title of Tennyson’s last work is

thought to be ‘In the Garden,’ and Longfellow

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 Protection for Truthful

Commercial Speech Promoting Lawful

Products and Services.

As advertising emerged as an increasingly powerful societal

force, state governments allowed it to grow unchecked, primarily

restricting the promotion of illegal products or services only."”

The few existing advertising restrictions were aimed at the

illegality of the advertised conduct, rather than advertising itself.

For example, Delaware prohibited advertising by unlicensed

lottery retailers. Del. Rev. Stat. ch. 98, v. 12, § 6 (1874).

Similarly, Vermont barred the advertising of lotteries “not

authorized by the law of this state or of the United States.” Vt.

Stat. tit. 34, ch. 119, § 7 (1870).

In response to an aggressive anti-abortion campaign beginning

in the 1840s, many states adopted extensive abortion restrictions.

See James C. Mohr, Abortion in America 147-170 (1978).

Some laws penalized “[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).”°

'° 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); lowa Code § 4043 (1873); Compiled Laws of Kan.

ch. 31, § 342 (1885); Ky. Rev. Stat. ch. 28, art. 21, § 4 (1860 & Supp.); 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); Or. Gen. Laws, Crim. Code, ch. 8, § 661

(1874); Compiled Laws of the Territory of Utah § 2002 (1876); Vt. Gen.

Stat. ch. 119, § 7 (1870).

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); N.J. Rev. Stat., Crimes

§ 44 (1874); N.Y. Rev. Stat. pt. 4, ch. 1, tit. 6, § 78 (1875); Ohio Rev. Stat.

ch. 2732, § 1 (1860 & Supp.); R.I. Gen. Stat. ch. 232, § 23 (1872); Compiled

Laws of the Territory of Utah, Penal Code tit. 9, ch. 8, § 162(4) (1876).

Notably, these restrictions applied with equal force to all speech

regarding abortion, commercial or noncommercial.

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 advertising. 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 misleading

advertising of lawful products and services, as advertising

increased, so too did the recognition that, if false, it could cause

harm. Beginning around 1864, certain more successful

newspapers refused to accept ads for questionable medicines

and quacks. See Wood, supra, at 180. Many papers warned

their readers against disreputable advertisers. In 1872, the

national government enacted regulations to restrict the

dissemination of fraudulent ads through the mail.”°

To the extent that this Court addressed issues relating to

advertising during and immediately after Reconstruction, its

decisions were consistent with the view that advertising 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.” Jd. at 732. But

this Court treated lottery advertisements in the same way that it

treated material that today would be fully protected.

*! Compiled Laws of Kan. ch. 31, § 338 (1885).

2 Cal. Penal Code § 311(4) (1872); Compiled Laws of the Territory of

Utah, Penal Code tit.9, ch. 8, § 162(4) (1876).

3 See Act of June 8, 1872, ch. 335, 17 Stat. 283 (codified at 39 U.S.C.

§ 3005 (1994)) (authorizing the Postmaster General, after 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).

Ill. LESSER PROTECTION FOR COMMERCIAL

SPEECH IS A TWENTIETH-CENTURY

PHENOMENON THAT HAS ITS ORIGINS IN A

DISENCHANTMENT 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 survey by the Press

and Printer of Boston counted 2,583 companies that advertised

in regular periodicals of general circulation. See Presbrey, supra,

at 362. Advertisements during World War I helped to sell $24

billion in war bonds to 22 million Americans and raise $400

million for the Red Cross. See id. 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 retumed. Total

investment in advertising soared from $1.5 billion in 1918 to

24 The 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 advertising

continued with the creation of the Advertising Federation of America,

which was formed in 1905. See 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. See

French, supra, at 131, 141.

almost $3 billion in 1920 and continued to grow throughout the

decade. See Wood, supra, at 364-365.”

B. Disenchantment with Advertising Became

Apparent 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 unfettered capitalism, and

advertising, grew. See Matthew Josephson, The Robber Barons

445-53 (1934); see generally Richard Hofstadter, The Age of

Reform (1955). Magazines that had once accepted patent

medicine advertisements—such as the Ladies Home Journal

and Collier’s—led the charge in 1904 and 1905 against the

fraudulent claims made by the industry.** See Wood, supra, at

327-30, 332. Some papers, including the Scripps-McRae

League of Newspapers, appointed censors to scrutinize all

advertising copy for questionable claims. See id. at 334. The

public outcry against adulterated and dangerous foods and drugs

ultimately led to the passage of the Pure Food and Drugs Act of

1906, which forced manufacturers to justify their claims and list

product ingredients. See id. at 333.

Because of these and other concerns, the advertising industry

in 1911 pushed for a model statute barring “untrue, 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, see Wood, supra, at 336, which largely represented a

codification of long-standing common-law restrictions on false or

> 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. See Presbrey, supra, at

578.

advertising perceived to be littering the landscape and testimonial

acvertising by celebrities who did not disclose that a fee had been paid

- for their endorsement. See Wood, supra, at 347, 392-93.

misleading 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. See Wood,

‘ supra, at 418. Critics charged that advertising was wasteful,

merely adding to the consumer’s cost. See id. at 424.

Advertising was attacked because:

There had to be a villain. Advertising as the

public voice of industry and business was

obvious and accessible 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. Advertising

was to blame, and shrill cries arose for its

Id. at 418.** This national mood during the Depression spurred

calls for increased restrictions on advertising. The federal

government aggressively responded to the perceived excesses of

advertising through New Deal enactments.’

” Following the stock market crash, advertising revenues tumbled from

$3.4 billion in 1929 to $1.3 billion in 1933. See Wood, supra, at 417.

*® Public skepticism about the role of advertising in the American

economy rose significantly. The consumers’ movement formed during

this era, producing best-selling exposés of advertising practices with

such lurid titles as 100,000,000 Guinea Pigs, Eat, Drink and Be Wary,

and Partners in Plunder. See Wood , supra, at 419-420.

? Indeed, Professor Bruce Ackerman has argued that these and other

changes brought about by the New Deal amounted to a decisive

watershed in constitutional law. See Bruce Ackerman, Constitutional

Politics/Constitutional Law, 99 Yale L.J. 453, 510-514 (1989); we 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”).

c. The Incorrect Association of Advertising

and Economic Liberties Led to the

Misguided Distinction Between Commercial

and Noncommercial Speech.

Although disenchantment among the body politic with

economic liberties led to increased state regulation of the

economy, this Court initially dampened 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

activity 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

constitutional protection of political speech.

Rudolph J.R. Peritz, Competition Policy in America, 1888-

1992, at 100-01 (1996). In contrast to the First Amendment,

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 pursuit of a lawful business rather

than advancing First Amendment claims. For example, in Halter

v. Nebraska, 205 U.S. 34 (1907), this Court upheld a state law

barring use of the American Flag on beer bottles. The parties

failed even to raise a First Amendment challenge, and instead

relied on a due process claim. State courts during this period

also analyzed, and in many cases invalidated, challenges to

*° It was not until 1931 that this Court first held that the First

Amendment applied to the states. See Stromberg v. California, 283 U.S.

359, 368 (1931).

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 process, 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 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 nightly discarded.” Douglas W.

Kmiec & John O. McGinnis, The Contract Clause: A Return

to the Original Understanding, 14 Hastings Const. L.Q. 525,

526 (1987).

3! 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 business); see also State ex rel. Booth v. Beck Jewelry

Enterprises, Inc., 41 N.E.2d 622, 626 (Ind. 1942) (“Truthful price

advertising is a legitimate 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).

2 See, e.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937);

United States v. Carolene Products Co., 304 US. 144, 152 (1938)

(“{RJjegulatory 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 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).

Thus, the differentiation between commercial and

noncommercial 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 night rather than a First Amendment

freedom. The distinction between commercial and

noncommercial speech, however, is inconsistent with the text and

history of the First and Fourteenth Amendments, as well as with

the long-standing “traditions of the American people.”

IV. THIS PROPOSED INTERPRETATION OF THE

FIRST AMENDMENT WILL - NOT

DRAMATICALLY ALTER THE COURT’S

FIRST AMENDMENT JURISPRUDENCE.

Removing the distinction between commercial and

noncommercial 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., Greater New Orleans Broad-asting

Ass'n v. FCC, 527 U.S. 173 (1999) (holding that the First

Amendment protects broadcast advertisements for casino

gambling and gambling-related activities when those

advertisements are broadcast from states that permit such gaming

activities); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484

(1996) (striking down complete statutory ban on price

advertising for alcoholic beverages); 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 of telephone calls to potential

clients); City of Cincinnati v. Discovery Network, Inc., 507

U.S. 410 (1993) (striking down a ban prohibiting newsracks

used to distribute commercial handbills on public property). This

analysis would also have the impact of avoiding the anomalous

results that the Central 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, prevent

govemment regulation of false and misleading advertising. 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 protection to commercial speech

but held that the government had the power to ensure that

commercial messages were not false or misleading. Se» id. at

771-72 n.24. Similarly, the government would not be prohibited

from restricting advertising of illegal products and services.”

Thus, affording commercial speech full protection is consistent

with the traditional understanding of the First Amendment ard is

not contrary to the established precedents of this Court.

¥. MASSACHUSETTS’ RESTRICTIONS ON

TRUTHFUL MESSAGES ABOUT A LAWFUL

PRODUCT ARE PROHIBITED BY THE FIRST

AMENDMENT.

Assessed under the proper level of scrutiny accorded fully

protected speech, Massachusetts’ restrictions are clearly

unconstitutional.** The presence of some children in the audience

cannot justify these sweeping restrictions. This does not mean

that a bar on tobacco ads in Boy's Life or My Weekly Reader

would be unconstitutional. But the government cannot restrict a

* Products and services that could not be advertised in the colonial

and Reconstruction eras were prohibited in their entirety @.g., horse-

racing and lotteries). Such activities, when lawful, could be advertised.

There is no basis for relying on such statutes to uphold advertising

restrictions on products that may lawfully be marketed to the

overwhelming n-ajority -of the population. See Eimann v. Soldier of

Fortune Magazine, Inc., 880 F.2d 830, 837 (Sth Cir. 1989) (noting that

protection of commercial speech “would disappear if its protection

ceased whenever the advertised product might be used illegally’).

** As the Petitioners’ brief conclusively demonstrates, however,

assessed under the Central Hudson analysis, Massachusetts’

restrictions are unconstitutional. See Petitioners’ Brief. Certainly, if the

regulations were invalid under this lower level of scrutiny, they would fail

under the more searching review required for fully protected speech.

truthful message about a lawful product merely because some of

those exposed to the message about that product may net

lawfully purchase it. Moreover, Massachusetts’ regulations are

not sufficiently narrowly tailored to serve the government’s

interest.

CONCLUSION

For the reasons set forth herein, the Court should reverse the

First Circuit’s decision. In the process, the Court should make

clear that commercial speech is to be accorded the same level of

constitutional protection as noncommercial speech.

Respectfully submitted,

Of Counsel

Wallace S. Snyder Daniel E. Troy

Jeffry L. Perlman Counsel of Record

AMERICAN ADVERTISING Kristina R. Osterhaus

FEDERATION WILEY, REIN & FIELDING

1101 Vermont Avenue, N.W. 1776 K Street, N.W.

Suite 500 Washington, D.C. 20006

Washington, D.C. 20005 (202) 719-7000

Robin S. Conrad

NATIONAL CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

Counsel for Amici Curiae 7

February 22, 2001

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.