Daniel E. Troy


The Supreme Court has long afforded commercial messages in a newspaper or magazine less protection than it has the rest of the publication's content, a doctrinal distinction that is largely supported by First Amendment scholars. This Article, after a thorough inquiry into the customs and legislative practices of the generation that framed and ratified the First Amendment, contends that this contemporary judicial and scholarly treatment of advertising as "low value" speech is misplaced. After tracing the evolution of the Court's current commercial speech doctrine-and locating the origins of the distinction between commercial and noncommercial speech in a now-discredited Lochner-era line of cases-the Article critically assesses the Court's current treatment of advertising. Although the Court's recent decision in 44 Liquormart, Inc. v. Rhode Island suggests the possibility that the Court is moving towards a more protective stance in commercial speech cases, the Court persists in its treatment of advertising as "low value" speech. Accordingly, the Article concludes that an abandonment of the distinction between commercial and noncommercial speech is necessary both to return modern Supreme Court jurisprudence to original First Amendment principles and to eliminate the inconsistency and confusion that the distinction has produced in the lower federal courts.

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