Viewpoint Discrimination and Commercial Speech, 41 Loyola of Los Angeles Law Review 169 (2007)
Martin Redish's argument, if I grasp it correctly, is that the
failure to extend "full First Amendment protection" to commercial
speech essentially amounts to "a form of impermissible viewpoint
discrimination undermining of the very core of what the First
Amendment is all about." So far as Redish is concerned, viewpoint
discrimination is rightly regarded as "the most universally
condemned threat to the foundations of free expression"' because the
prohibition of viewpoint discrimination prevents the regulation of
expression from degenerating into "a struggle for political power."
"There can be no exceptions to the constitutional bar of viewpointbased
regulations," Redish writes, "because to permit one exception
is effectively to permit all viewpoint-based regulations."
I must confess that despite my great admiration for Martin
Redish I am in complete disagreement with this argument. There is
much I could say about our differences, but in this brief comment I
shall confine myself to two points: First, the concept of "viewpoint
discrimination" is too confused and uncertain to carry the weight that
Redish imposes on it. Second, even if an intelligible meaning could
be given to the idea of viewpoint discrimination, there are good, nonviewpoint-
based reasons for extending to commercial speech forms
of protection that differ from those extended to political speech.
Date of Authorship for this Version
Post, Robert, "Viewpoint Discrimination and Commercial Speech" (2007). Faculty Scholarship Series. Paper 4641.