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Commercial Speech and the First Amendment

Cigarette Companies and the Playboy Channel Have Rights, Too—Or Do They?

For sheer incoherence, incomprehensibility, and outrageousness, nothing beats the United States Supreme Court's First Amendment jurisprudence. The First Amendment is a fairly simple piece of constitutional law: It forbids the federal legislature from restricting freedom of speech, freedom of the press, freedom of religion, or from establishing a national religious sect. Unfortunately, in the 20th century, the Supreme Court has been influenced by the "anything goes" jurisprudence of Legal Realism, embarking on an extraordinary program of transforming the Constitution. In the process, the First Amendment's meaning has become hopelessly obscured.

The key mistake made by the Court was its decision that the freedoms guaranteed by the First Amendment were so fundamental that the prohibitions should be extended, without express constitutional authority, to the acts of state and local governments. When the 14th Amendment provided that no state should deprive any citizen of life, liberty, or property without due process, the Court claimed that somehow this meant that there were certain freedoms—such as freedom of speech, press, and religion—that could never be deprived through due process. These freedoms were essential, in the Court's words, to "ordered liberty." Yet no one knows which freedoms are essential to ordered liberty, and what parts of the Bill of Rights now circumscribe state and local...

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