Freedom of Commercial Expression.

Vol. 14 No. 8 (August 2004), pp.648-651

FREEDOM OF COMMERCIAL EXPRESSION by Roger A. Shiner. Oxford: Oxford University Press, 2003. 380pp. Cloth $72.00 / £45.00. ISBN: 0-19-826261-2.

Reviewed by Mark Tushnet, Georgetown University Law Center. E-mail: tushnet@law.georgetown.edu

Constitutional courts around the world – including the European Court of Justice and the European Court of Human Rights – have begun to apply ordinary free speech doctrine to commercial advertising. Indeed, the most recent decisions by the United States Supreme Court seem to indicate that a majority of the currently sitting justices believe that commercial expression is indistinguishable, for constitutional purposes, from political expression, and that regulating commercial expression is an indefensible form of paternalism.

Roger Shiner, emeritus professor of philosophy at the University of Alberta, argues forcefully that this development is “wholly indefensible” (p.2). By this he means that none of the arguments that support giving substantial protection to political expression support doing the same to commercial expression (and that there are no additional arguments justifying that course of action). As he puts it, “my argument is simply that . . . freedom of commercial expression does not promote the ends which make freedom of expression valuable” (p.18). Shiner presents his case forcefully and, in the main, entirely persuasively.

The first part of Shiner’s book reviews the jurisprudence of commercial expression in the United States, Canada, and the European transnational courts, with occasional references to cases in European constitutional courts. Shiner’s summaries are valuable in themselves, and he uses them to introduce the larger argument pursued in the remainder of the book. In my judgment, Part One’s centerpiece is a detailed and devastating critique of the logic of the U.S. Supreme Court’s decision in VIRGINIA BOARD OF PHARMACY v. VIRGINIA CITIZENS CONSUMER COUNCIL (1976), the origin of the modern doctrine. Working through the opinion in detail, identifying its presuppositions, and analyzing the inferences the Court drew, Shiner picks the opinion apart to the point where there seems to be nothing left (pp.37-50).

Part One also makes an argument about the range of cases involving commercial speech, signaled in the part’s subtitle, “The Contingencies of Institutional History.” Shiner argues that some of the early cases had features that made them “tempting candidates” (p.25) for finding constitutional violations. Some involved activities that could fairly be described as commercial, such as labor organizing and solicitation of magazine subscriptions, but that were also close to core free expression values – the right of political association for labor unions, and traditional press rights for magazines. Shiner argues that the courts were misled into seeing those cases as examples of “commercial expression,” rather than as, for example, political expression with commercial overtones. As a result, courts began to apply [*649] general free expression principles to the category “commercial expression,” which Shiner argues was a large mistake.

Part Two is a “theoretical interlude.” Shiner argues that “expression” and “speech” are – in the context of constitutional law – theory-laden terms whose meaning is not captured directly by some of the more ordinary uses of those words. We must have a theory of free expression to know how to define “speech” or “expression” for constitutional purposes. For Shiner, we protect freedom of expression not simply because expression occurs in words (because it is “speech”), but because of the illocutionary force of the words used.

Part Three, almost half of the book, evaluates the arguments for protecting commercial expression. Shiner acknowledges that he has a fairly conventional view of what free expression is for: It helps determine truth, it assists in and is a component of self-government, and it is a means of self-realization. But, he argues, none of these standard purposes of free expression is served by categorically protecting commercial expression (and, when one of the purposes is served by protecting an instance of commercial expression, we should see the protection as flowing from some feature of the expression other than its commercial aspect).

In successive chapters Shiner asks whether freedom of commercial expression is a right of autonomy, whether it is a right derivative of the rights of hearers, whether commercial expression assists in self-realization, and whether regulating commercial expression is unjustifiable paternalism. Shiner argues that the point of autonomy rights is to advance values such as dignity, equality, happiness, and flourishing. But, he argues, such values can attach only to natural persons, not to corporations (or to partnerships and other forms of commercial enterprise). Again he invokes a version of the “contingencies of institutional history” argument to note that, when Canadian courts allow corporations to invoke constitutional rights, they do so to serve values such as “the integrity of the justice system” (p.176) rather than the values of autonomy that are served when natural persons invoke the very same rights.

What of the argument that corporations are simply ways in which individuals choose to organize their lives, and that, as such, they serve the values of autonomy because of the contractual arrangements underlying the corporate form? In what might be the only real weak point in an otherwise strong work, Shiner presents and criticizes philosophical accounts of corporations as persons. The burden of Shiner’s argument is that scale matters (pp.184-85). Autonomy values might be served when a natural person invokes a right of free expression; they are served somewhat less when an individual proprietorship does, even less when a small partnership does, and not at all when a corporation does. The difficulty with this argument, I believe, is that it seems in tension with Shiner’s bold claim that the right of commercial expression is “wholly indefensible.” If autonomy values dribble away as scale expands, the right of commercial expression seems to be defensible up to some point, the location of which Shiner [*650] does not seem to identify as carefully as he should.

Shiner then turns to instrumental justifications for a right of commercial expression. Using a term first provided by Burt Neuborne, Shiner asks whether a corporation might “borrow” a right of free expression from those who hear its messages. Shiner acknowledges that Neuborne’s metaphor has some force, but he eventually rejects it because it relies on intuitions that prove “elusive and evanescent” (p.198) when examined closely. The problem lies in identifying situations in which a listener has a right when the speaker does not (otherwise there is no need for the speaker to borrow the listener’s right). And, Shiner argues, doing so is extremely difficult. The cases that invoke listeners’ rights are, on analysis, mostly cases in which the speakers themselves have rights. Shiner agrees that there might be some value in protecting listeners’ rights in a limited class of cases, but he treats that class of cases as yet another example of mistaken generalization. That is, with respect to it, what is at work is a right to hear political expression, not some general listener’s right to receive any material whatever.

Chapter Eleven considers the argument made in VIRGINIA BOARD OF PHARMACY that consumers’ interest in commercial information is often “keener by far” than their interest in political information. Shiner contends that the only respectable version of this argument is that informed economic choices promote autonomy, which he labels the “Self-Realizing Consumption” argument. Using Martin Redish’s version of that argument, Shiner says that its coherence depends on adopting a “thin” notion of autonomy, and that, in the context of constitutional protections, a thicker notion of autonomy is appropriate. Finally, self-realizing consumption does not promote autonomy in that thicker sense – which means that the “keener by far” argument does not justify strong protection of commercial expression.

Shiner then takes up the anti-paternalist case against regulating commercial speech. His fine discussion of paternalism and its justification could be excerpted for general use, outside the context of the topic of commercial expression. After describing what is wrong with paternalism and why paternalist regulation is sometimes justified, Shiner concludes that a great deal of the regulation of commercial expression is not paternalist at all, or, if it is, is justified paternalism. This is a very fine chapter.

Finally, Shiner addresses the argument that the free flow of commercial information is itself good, largely because it aids in making market economies work. Drawing on work in behavioral economics and the economics of information, Shiner argues that the free flow of information does not necessarily maximize expected utility. It might, but then again, it might not. The circumstances under which it does are complex ones. Providing constitutional protection to commercial expression is a matter of institutional choice, allocating to the courts the task of ensuring that the conditions for maximizing expected utility are satisfied. But, Shiner argues, in other areas of regulating commercial activities – sales rather than advertising – modern democracies have allocated that task to legislatures. He finds no [*651] reason to believe that legislatures lose their institutional advantages on that task only when commercial expression is involved.

Shiner concludes by noting that “[t]he friends of the commercial expression doctrine call upon the professional skills of the advertiser to influence judicial reasoning,” and that the “drumbeat” of the associated rhetoric “is as relentless, and if one is not careful as hypnotic, as in any Brazilian football crowd or heavy-metal extravaganza” (p.331). Shiner’s is a work of conceptual dissection, done with the kind of care that forestalls the hypnotic effects. The book is filled with extremely precise formulations, the subtlety of which is inevitably lost in a short review. Anyone interested in the philosophical underpinnings of the arguments about protecting commercial expression must now start with this book.

CASE REFERENCES:

VIRGINIA BOARD OF PHARMACY v. VIRGINIA CITIZENS CONSUMER COUNCIL, 425 U.S. 748 (1976).

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