Response to Central Criticism

Professor Weinstein’s central substantive criticism is that I conflate the crucial distinction between purpose, means and effect in relation to some relevant government regulation. Ignoring the distinction, he believes, vitiates my repudiation of the claim that appropriate autonomy interests are violated by government regulation of commercial speech. The criticism fails. Throughout the book I emphasize an important distinction, and this distinction is overlooked by Professor Weinstein’s line of criticism.

There is a difference between an argument that shows (or purports to show) that there are (or are not) relevant rights to be protected against government interference, and an argument that takes on the task of displaying, given that there are such rights, the merits or demerits of various ways of actually protecting those rights. My concern in the book is strictly with the former question.

If there are no relevant individual rights in the domain of commercial speech to be protected, then the merits or demerits of various actual doctrinal or regulatory schemes are neither here nor there. It seems to me that Professor Weinstein’s discussion of purposes, means and effects, and of levels of protection, is the second kind of argument, not the first.

My standard of proof for constitutional rights is that in the nature of the case government regulation of commercial speech violates autonomy. To show that we can imagine circumstances where the purpose of a government regulation might be to violate autonomy does not meet that standard. In any case, I also tried to show that the very idea of a hearer’s right to receive information is one for which we lack a sound account. Professor Weinstein does not mention this chapter.

A sound principle of freedom of speech

Professor Weinstein is also concerned that I do not acknowledge enough the connection between informed economic choice and autonomy, and so fail to see how the fostering of informed economic choice might promote autonomy. Let us suppose that he is correct, although (of course) I do not think he is. Another principle that I insist upon in my book is that constitutional protection for commercial speech – under a constitutional provision like the U.S. Constitution’s First Amendment, or S.2(b) of the Canadian Charter of Rights and Freedoms – must be justified by showing that such protection falls under a sound principle of freedom of speech.

No argument is given by supporters of freedom of commercial speech that fostering informed economic choice has to do with freedom of speech. The connection is simply assumed, but it needs a defense. Suppose one argues: “Informed economic choice promotes autonomy; autonomy is a valid First Amendment value; therefore, the First Amendment protects informed economic choice.” The argument as it stands is simply invalid; moreover, it is not made valid by the observation that commercial speech is, in the ordinary sense, “speech.” Professor Weinstein acknowledges that I have successfully severed the connection between freedom of speech and constitutional protection for commercial speech, but he does not seem to think that matters. It does, when supposedly the First Amendment, or S.2(b), is held to be the ground for constitutional protection.

Conclusion

I recall an acquaintance saying to me once, after hearing me present a summary of my ideas about freedom of commercial expression: “I don’t care if constitutional protection of commercial speech cannot be justified on freedom of speech grounds; it’s a good thing, and ought to be done anyway.” My challenge in the book is that, if that’s the best defense freedom of commercial expression can have, it is no defense. A commitment to constitutionalism requires a better integration into the tradition we have inherited.