Document Type



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


Included in

Law Commons