As part of a detailed discussion of the evolution and development of the commercial doctrine in the United States, Canada and Europe, the first part of the book critically analyzes virtually every major commercial free speech decision in the Western world. In the second part, Shiner brings philosophical and political theory to bear in an attempt to prove that “freedom of commercial speech does not promote the ends that make freedom of expression valuable” (p.18). Even more ambitiously, the Canadian philosopher promises to demonstrate that “the commercial expression doctrine has no sound theoretical foundation in political morality” (p. 119). Although Shiner fails to prove this audacious claim, he succeeds in showing that some of the arguments in favor of the protection of commercial speech are unsound.

Shiner’s Doctrinal Analysis

Professor Shiner’s attempt to provide a comprehensive description and critical analysis of commercial speech doctrine is admirable. But the overabundance of detail, combined with numerous digressions, will, I fear, try the patience of even the most interested reader.

To list just two examples: Shiner cites by section number the various provisions of Canadian Criminal Code (e.g., Sections 175 (1) (a) (i), 300 and 486.1) considered by lower courts to infringe free speech. To discover the conduct covered by these provisions, however, the reader must search the previous page (and in one case the footnotes). In another part of the book, the reader is regaled with a 26 page chapter devoted to discussing tortious interference with contract, off-label uses of pharmaceutical drugs, and the right of publicity to support the view that not all “speech,” in the ordinary use of that term, is expression protected by a constitutional free speech principle. Shiner’s point is an important one but is obscured by this excess of doctrinal detail.

Not only is this welter of detail a challenge for the reader, it seems to have led Shiner to occasionally lose sight of the big picture. He thus misses the potentially important doctrinal development in 44 Liquormart v. Rhode Island (1996). Shiner erroneously reports that in that case “eight judges accept that the [intermediate scrutiny provided by the] Central Hudson test is the appropriate test for commercial speech” (p. 59). In fact, three Justices (Stevens, Kennedy, Ginsburg) state that they would apply “strict scrutiny” to regulation of “truthful, non-misleading commercial messages for reasons unrelated to the preservation of a fair bargaining process,” while a fourth, Justice Thomas, would hold a ban on truthful price information per se invalid.

Ironically, in certain key places Shiner gives the reader insufficient detail. For instance, he fails to recount the holding in Canadian Supreme Court’s seminal decision in Attorney General of Quebec v. Irwin Toy, Ltd. (1989) or to describe the regulation at issue in that case (pp. 73-74, 80-81). Similarly, in discussing an important tobacco advertising case, RJR-MacDonald Inc. v. Canada (1995), Shiner fails to explain what restrictions on tobacco advertising were imposed by either the federal Tobacco Products Control Act or by the subsequent Tobacco Act enacted after the first statute was invalidated by the Canadian Supreme Court.

Shiner’s Theoretical Discussion

The problem of minutiae and digression detract from the theoretical part of the book as well, though to a lesser degree. Here Professor Shiner makes some very good arguments that the protection of ordinary commercial speech (“I’ll sell x product for y price”) promotes neither the values of democracy nor the search for truth underlying free speech. With respect to personal autonomy and self-realization, Shiner admits that commercial speech plausibly promotes theses values.

He persuasively argues, however, that any conception of autonomy or self-realization broad enough to encompass the protection of commercial speech would entirely swallow up free speech as an independent principle. But showing that the protection of commercial speech is not really grounded in free speech, but rather in the autonomy to make informed economic decisions (a point not original with Shiner), merely shifts the inquiry to whether such activity has sufficient connection with individual autonomy as to make its protection proper in a liberal democracy. Shiner thinks not, and sets out methodically to refute every plausible argument supporting such a connection. Though he is successful in exposing the weakness of many of these arguments, several remain unscathed.

Speaker Autonomy

Shiner spends a lot of time proving what I would have thought was a rather obvious proposition that only natural persons, and not artificial entities such as corporations or other business entities, can themselves possess autonomy rights. He spends insufficient time, in my view, addressing the somewhat more plausible argument to which he occasionally appears to allude, namely, that regulation of business entities might nonetheless impinge the autonomy rights of the natural persons who manage and own these artificial entities.

This is not a fatal flaw, however, for as Shiner correctly points out, courts almost universally justify constitutional protection of commercial speech not as vindicating speakers’ interests, but rather as protecting the audience’s right to receive information.

Audience Interests

There are three very different ways in which government interference with information flow might violate audience rights: 1) the government’s purpose for such regulation might be illegitimate, for instance, motivated by paternalism that insults the audience’s rationality; 2) even though the government’s end may be legitimate (e.g., avoiding harm society) the means of achieving it (e.g., by restricting information) might be illegitimate; or 3) even if the purpose and means are both in principle legitimate, the effect of the regulation may be to unduly interfere with the audience’s ability to make important decisions. Regrettably, Shiner tends to conflate these very different analyses.

Paternalism

Professor Shiner usefully points out that some commercial speech regulations that courts have condemned as paternalistic are not motivated by a desire to protect a listener from self-inflicted harm, but rather restrict speech to avoid societal harm (e.g., overuse of electricity during an energy crisis). But other types of regulation, such as those restricting advertising for alcohol, cigarettes, gambling and other “vices,” do raise the specter that government is trying to protect the listeners from harming themselves.

Of course, there may be non-paternalistic rationales for some of these regulations: Alcohol consumption can cause catastrophic harm to others, and children may be in the audience receiving the tobacco advertising. To assess the paternalistic nature of such regulations, one would have to know their scope and particulars, something that, despite his fondness for detail elsewhere, Shiner does not provide. More problematically, he spends little time focusing on the regulations that do have a distinct paternalistic odor, but instead repeatedly beats the dead horse that not all regulation of commercial speech is paternalistic.

The author ultimately does consider whether bans on advertising for casino gambling are paternalistic, and denies that they are, even under the assumption that they are motivated by a desire to “dampen demand” for that activity. He reasons that the decision to gamble has not been overridden: government has not made casino gambling illegal, rather “[i]t is just regulating casino advertising” (p. 239). But this argument, to use one of Shiner’s favorite accusations, merely begs the question. That government for a number of practical reasons has chosen not to make gambling illegal, and that therefore the effect on choice is not as great as it might have been, does not make the purpose of the regulation any less paternalistic, if it is indeed motivated by a desire to protect the listener from self-inflicted harm.

Shiner goes on to argue that even if regulation of alcohol, tobacco and gambling is paternalistic, it is justified paternalism because the majority has consented to the banning of advertisements that might lead members of the consenting majority to smoke and thus endanger their health; the allegedly paternalistic impact on the unconsenting minority is, if I understand the upshot of Shiner’s rather convoluted argument, merely an incidental impact of the majority’s desire to have the government protect their own health. It is not so clear, however, that those who support bans on cigarette advertising are concerned exclusively, or even primarily, with the protecting themselves against the seduction of cigarette advertising, as opposed to protecting those who have not “consented” to such protection.

Keeping Citizens Ignorant

Aside from often making the often misplaced charge of paternalism, courts and commentators have leveled the related accusation that it is impermissible for the government to keep people in ignorance about such matters as the price or availability of legal products. Shiner denies that there is anything problematic about such regulations. He argues that although such regulations might make information harder to obtain, “it is ridiculous to speak in terms of ‘keeping citizens … ignorant’” (p. 273). The problem with Shiner’s argument is that he attempts to rebut a charge about illegitimate means (and perhaps purpose as well) – it is in principle wrong for government to attempt to achieve even legitimate economic ends by keeping ignorant of information — by focusing on effects — some people will discover the information despite the ban. Moreover, even in terms of effects, unless we assume that the regulation in question is completely ineffective, some people will in fact be kept ignorant of useful information. Shiner may be right that there is nothing impermissible with government regulating economic activity by restricting information in this way, but his discussion of this issue is singularly unenlightening.

Audience Autonomy and Self-Fulfillment

Shiner fares no better in his response to the charge that because commercial speech plays a significant role in enabling individuals to make informed economic decisions, regulation of commercial speech interferes with the personal autonomy and self-fulfillment of the consumer. Shiner’s response to this argument is long, detailed and discursive, but its nub is this: Although informed economic choice may be “an aspect” of individual self-fulfillment and personal autonomy, in that “[p]rojects of searching for, and after achieving[,] exercising, autonomy, and self-fulfillment may along the way involve informed economic choices,” still “only some projects will go better with informed economic choice, and then only some of the time.” Consequently, in Shiner’s view, informed economic choice “does not in itself make sense as a project of autonomy and self-fulfillment” (p. 233).

Professor Shiner may well be correct that there is a closer connection between autonomy and self-fulfillment, on the one hand, and rights such as control over one’s procreation or the free exercise of one’s religion, on the other, than there is between autonomy and “informed economic choice.” But while such an observation may be good grounds for ranking informed economic choice considerably lower on the hierarchy of constitutional values in a liberal democracy, it does not disqualify such an interest from all constitutional protection.

Significantly, commercial speech in the United States (or, to my limited knowledge, in Canada and Europe as well) has never been exalted as a fundamental right worthy of the same protection as procreative or religious choice or, for that matter, the rigorous protection afforded political or artistic expression. Rather, courts have afforded commercial speech mid-level protection appropriate to its status as speech that, for the reason that Shiner suggests, is only moderately and intermittently connected with individual autonomy and self-fulfillment. Specifically, the moderate level of protection provided by the Central Hudson test allows courts to protect commercial expression on those occasions when it perceives that “informed economic choice” is necessary for “[p]rojects of searching for, and after achieving[,] exercising, autonomy, and self-fulfillment,” while rejecting such challenges on those occasions when the court concludes that there is an insufficient connection between the speech an listener’s autonomy interests. Ironically, while Shiner’s analysis may provide a strong argument against extending to commercial speech the rigorous protection afforded political and artistic speech, his argument actually supports, rather than undercuts, the level of protection currently afforded such expression.

Conclusion

Measured against the goal that the author sets for this book — proving that “the normative arguments adduced in favour of [commercial speech] are without exception invalid and unsound” (p. 328) — the book is a failure. But judged by the usual standards for appraising a comprehensive analysis of a difficult subject, the book is a qualified success. Though by no means a path-breaking study, the book exposes a number of untenable arguments in favor of the constitutional protection of commercial speech. In addition, the book provides a wealth of information about the history and development of the commercial speech doctrine.