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Advertising: Not \u22Low Value\u22 Speech

By Daniel E Troy

Abstract

The Supreme Court has long afforded commercial messages in a newspaper or magazine less protection than it has the rest of the publication\u27s 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 \u22low value\u22 speech is misplaced. After tracing the evolution of the Court\u27s 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\u27s current treatment of advertising. Although the Court\u27s 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 \u22low value\u22 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

Topics: Law
Publisher: Yale Law School Legal Scholarship Repository
Year: 1999
OAI identifier: oai:digitalcommons.law.yale.edu:yjreg-1470
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