Commercial Speech, is it protected?

In his article about Commercial Speech, Robert Kerr writes about the labels used in speech and divides such labels of speech into four different sections. This divide is one that Kerr uses to organize the four, speaker, listener, regulator, and rationalist. These four perspectives are argued to be satisfied with the freedom of commercial speech. Kerr then goes on to explain the fundamental level that commercial speech is at. Speech that is neutral or against a transaction is more protected than speech that promotes a transaction. The article then goes on to address the history of the protection of commercial speech. This level of protection was reduced during the New Deal era in the 1940s and subsequently was decided in the 1970s in the Virginia Board court case where pharmacy advertisements were limited on their ability to promote their products as they required a level of honesty in their advertising about the side effects of the drugs they were promoting. This would later be the standard moving forward and thus the definition of commercial speech was made into a solidified baseline with which the court could enforce such decisions with a level of logic that would be required to monitor this type of speech,

As defined earlier, there is a definition for commercial speech that equates to the idea of promoting a transaction and thus is more limited and restricted than other types of speech. If one were to view it on a stair chart, commercial speech would be much lower than political speech in terms of protection. Kerr notes the issue with this as the drama over the Chevrolet Corvair was made harder to smooth over. Ralph Nadler would be able to freely discourage the Corvair, while GM would be unable to freely reply and defend it. This is due to GM promoting the vehicle while Nadler can discourage it more freely. Kerr's conclusion about this is that the tougher restriction of commercial speech is a bad decision as it restricts the freedom of choice of the consumer. This relates heavily to the film Thank You For Smoking (2006) where the main character, a lobbyist for big tobacco, was able to win a court case about labels on cigarette boxes by claiming the consumer knew it was harmful and had the freedom of choice to partake. Thus Kerr's observations fall into a similar line of thought, where the freedom of choice is claimed to be damaged by regulating commercial speech.

Kerr then goes on to explain how the viewpoints are benefitted by speech. The first two, speaker and listener can both benefit, or one can benefit while the other does not. He also includes the goals of regulatory and rationalist. The former is in favor of regulating the powers that lead to suppression, while the latter is more interested in the level of protection of the differing types of speech which limits the reach of the regulatory. This is seen in the way the government cannot ban the burning of the U.S. flag and allow the burning of other flags as it would be discriminatory. The result of this would be in each form of speech and thus the reasoning for not limiting commercial speech would be so that those in power are not swaying those not in power. That is to say that the corporation is an entity that exists to counter the powers that exist already as to foster new growth and new ideas. However, this is also important in that the regulation of such entities are required as not to sway government which could then silence competition. Kerr argues that the less restrictions placed, the less a government prone to infiltration by wealthy corporate entities would be able to serve such entities by suppressing competition. Though regulation could also prevent this when looking at it from a differing perspective. Though this is not to advocate for false speech, as Kerr mentions that such speech is already excluded from First Amendment protection when it meets certain criteria. This criteria would be to falsify information, and thus be deceptive and would only damage such a system. And so it is to be left out from protection as it does not benefit or promote the integrity of commercial speech.

While this may be how Kerr sees the way in which commercial speech is protected. He wishes for more protection so that it equals the level of protection any other speech receives. His reasoning is that the main reason people would want to regulate commercial speech is to protect those who would make poor choices and thus be harmed by the transaction. This is further expounded on as Kerr claims people are either sheep or not. Thus they will either make the right choice, or they do not have the intelligence to make such a choice and thus should not partake in democracy. So while Kerr seems content with this argument, there are many holes in said claims. To begin with, while Kerr transitions the way in which we view the four categories, he assumes his own conclusion off of that singular viewpoint. If one were to agree with the initial grouping, they must agree with the rest. However, this is not the case and Kerr's final assumption about the idea of all or nothing when dealing with the complex creatures we call humans is a rather narrow point of view. Another fallacy is one called the "slippery slope" fallacy. The idea that one initial event or belief will result in a chain of events or beliefs that are intrinsically tied to this initial belief. However, this ignored nuance and thus is simply a framing issue. While Kerr does have an argument about the promotion of commercial speech, he does tend to assume that people will all think one way or the other. Regulation would exist for those who are prone to deceit such as children or those prone to scams like the elderly. False information that suggests the transaction with a harmful result would initially be up to those to make the choice whether or not to partake. However, it is also my belief that this does not, and should not entail to all people. Those who are too young to vote cannot partake in the democratic system, so to use Kerr's own logic, it would stand to reason that they also not be put into the position to make such choices.

While Kerr does have a point in that commercial speech has gotten increased levels of protection, it would most likely fail to reach his desired destination as such a lack of regulation would be opening the doors for the issues that he believes will be solved by this method. The irony is that what is promoted seems to suggest that the claimed conclusions of what would happen if the inverse were done would actually happen if such regulation were to not exist to begin with.