They Can't Say That On Television: Litigating Towards a Sane Commercial Speech Doctrine & The Public Health Implications

The performer Carrie Snow once remarked, “Advertising degrades the people it appeals to; it deprives them of their will to choose.” Poor choices, influenced by increasingly pervasive and effective advertising, lie at the heart of many of the public health crises we face today, including the obesity epidemic. Yet, governments have little ability to curtail advertising's excesses, thanks to forty years of jurisprudence steadily expanding the constitutional protection afforded advertising, or commercial speech. Commentators have noted the vital role interventions designed to reduce the exposure to or efficacy of advertising would play in addressing some of these public health crises. Before any such intervention can take place, however, the drumbeat towards unfettered commercial speech must end. Achieving this goal – a sane commercial speech doctrine – will require patience and, above all, strategy. This piece presents such a strategy, predicated on the notion that any limitation on corporate speech or any expansion of state police powers represents a boon to those concerned about commercial speech. The piece draws lessons from analogous successful efforts, such as the Montana Supreme Court's recent deft avoidance of the Citizens United precedent in upholding regulation of corporate political speech.