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Abstract

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 viewpoint-based 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

2007

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