Justice Thomas and commercial speech

Monday, October 8, 2007

Bruce E.H. Johnson

This article is part of an online symposium on the First Amendment Center Online concerning Supreme Court Justice Clarence Thomas’s First Amendment jurisprudence.

“Senator, I have, just as — I have not analyzed every single speech case, but my own value would be to protect the entire amendment in all of its fullness, and not to find ways to creatively read out that protection. I think it is important that we protect all of the amendment.” — Clarence Thomas, during confirmation hearings, Sept. 16, 1991

Justice Clarence Thomas, both by his presence on the Supreme Court and his participation in opinions in support of rights of commercial speakers, has significantly solidified the First Amendment protections for commercial speech — generally defined as “speech that does no more than propose a transaction.” Before his arrival, the Court’s commercial-speech jurisprudence was erratic and the scope of constitutional protections uncertain. Initially, Justice Thomas seemed to accept this hesitation about defending commercial speech, but by 1995 he had become a strong proponent of First Amendment limitations on government regulation of commercial-marketplace speech and, a year later, moved further. He adopted a vanguard position that advocated strict scrutiny for major government regulations affecting commercial speech. Despite their differing ideological perspectives and his own advanced position against the Court’s intermediate-scrutiny precedents, it appears that Thomas has now joined Justice John Paul Stevens as an anchor of the Court’s majority providing strong constitutional protections for commercial speech and commercial speakers.

But this embrace of commercial-speech rights was a process, more than an ideology, and his strong defense of the First Amendment in the commercial context took several years to develop. It was driven by the cases, which forced Thomas to embrace a strong pro-consumer stand, rejecting irrational government regulation. Thus, any analysis of the commercial-speech jurisprudence of Justice Thomas must discuss his journey, with chronology rather than logic as the determinant.

Court’s ‘Fits and Starts’ before Thomas
The status of commercial-speech case law when Justice Thomas joined the Court can be appropriately summarized as “Fits and Starts” — the title of Chapter 5 of our treatise, Advertising and Commercial Speech: A First Amendment Guide, which describes the Supreme Court’s commercial-speech opinions during the late 1980s.

During that decade, the Court’s intermediate scrutiny Central Hudson test (from Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York (1980)) was, as it remains today, the applicable standard for evaluating commercial speech restrictions against constitutional challenge, but the Court sometimes applied the Central Hudson test inconsistently and offered only tepid support to commercial speakers. In a several cases, the Court’s opinions purported to rely on the Central Hudson analysis but instead offered halting, and even grudging, recognition of commercial-speech rights while deferring to speculative justifications advanced in support of state regulatory schemes.

For example, in Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico (1986), the Court cited its four-part Central Hudson test, but instead took a deferential approach to a Puerto Rican prohibition of local advertising of gambling activities that were completely legal on the island. In upholding the restriction, the Court even suggested that the power to ban a product or service necessarily includes the power to ban its advertising. Because Puerto Rico could ban gambling, even though it had not done so, the Court ruled that it could outlaw gambling advertisements that did not promote tourism.

In a similar vein, in Board of Trustees of the State Univ. of N.Y. v. Fox (1989), the Court allowed restrictions on college “Tupperware parties” and ruled that Central Hudson required only a “reasonable fit” between a government’s ends and its chosen means. Finally, in Peel v. Attorney Registration & Disciplinary Commission of Illinois (1990), the Court could muster only a plurality in support of Justice Stevens’ opinion striking down a “paternalistic” state ethics rule that prohibited a lawyer from informing the public of his certification as a trial specialist by the National Board of Trial Advocacy. (Interestingly, the fifth vote in support of attorney Peel was that of Justice Thurgood Marshall — replaced by Justice Thomas in 1991 — who concurred in the judgment only, and also suggested that the word “certified” might be misleading because it could imply action by a state agency.)

First steps: Justice Thomas sides with pro-regulation rulings
Justice Thomas did not come immediately to his position as a commercial-speech supporter. In his first years on the Court, he joined the dissenters in City of Cincinnati v. Discovery Network, Inc. (1993), who rejected an expansive view of the Central Hudson standards and embraced SUNY’s deference to government justifications of a “commercial handbill” news-rack ban based upon a “reasonable fit” analysis, and Justice Byron White’s opinion for the Court in United States v. Edge Broadcasting Co. (1993), which extended Posadas to uphold a federal law that prohibited advertisements of legal out-of-state lotteries by broadcasters licensed in a state that had not yet legalized such lotteries.

Yet, as an illustration of the apparent incoherence of the Court’s commercial-speech doctrine during this “fits and starts” era, another decision that year was strongly protective of the First Amendment values of commercial speech. Edenfield v. Fane (1993), an 8-1 opinion allowing in-person solicitation of clients by accountants, was written by Justice Anthony Kennedy and joined by Justice Thomas. Edenfield is also noteworthy because it embraced the value of commercial speech that offered “broad access to complete and accurate commercial information” and also endorsed in-person solicitation, because it offered “direct and spontaneous communication between buyer and seller.”

The following year, in Ibanez v. Florida Department of Business & Professional Regulation (1994), Justice Thomas voted with the Court’s 7-2 majority to strike down a Florida decision that penalized a lawyer, who was also a certified public accountant and a certified financial planner, for listing those designations on her letterhead and business cards. The Court’s opinion, by Justice Ruth Bader Ginsburg, relied on Edenfield and characterized the Central Hudson test as requiring a showing that a government restriction on commercial speech “directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest.” Even state-required disclosures and disclaimers must meet the Central Hudson test, the Court ruled, and the Ibanez opinion suggested that the test would have teeth: The government must “demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” (Justice Thomas embraced the message of Ibanez; a few years later, in Borgner v. Florida Board of Dentistry (2002), he dissented from a denial of certiorari in a case brought by a Florida dentist regarding a state-mandated disclaimer where the dentist’s advertising was accurate and only “potentially” misleading.)

Rubin: strengthening commercial-speech protections
Ibanez was a foreshadowing of the first commercial-speech majority opinion written for the Court by Justice Thomas: Rubin v. Coors Brewing Co. (1995). At issue in Rubin, a unanimous decision, with an expansive concurrence by Justice Stevens (the leading proponent of First Amendment commercial-speech rights), was a typical irrational government regulation of alcohol and commercial speech: a federal law that prohibited beer companies from listing the alcohol content on their bottle labels while other federal laws allowed brewers to advertise such content and required wine and spirits manufacturers to display such information.

In Rubin, writing for the Court, Justice Thomas expressly rejected the apparent exceptions to the Central Hudson test that had been suggested in the Court’s decisions in Posadas and Edge Broadcasting, where the Court had suggested that a substantially weakened Central Hudson analysis might be applicable to commercial-speech restrictions relating to “socially harmful” activities such as gambling or alcohol consumption. Thomas decisively rejected this rationale. At issue was a federal government effort to stop “truthful, verifiable, and nonmisleading factual information,” he noted. According to Thomas, “the irrationality of this unique and puzzling regulatory framework” led to the conclusion that the state had not satisfied the Central Hudson test, even with the evidentiary “tidbits” offered in support of the government scheme.

With Rubin, Justice Thomas had apparently assembled a solid Court majority into finally abandoning the ad hoc “fits and starts” reasoning demonstrated in the Posadas and Edge Broadcasting cases. Interestingly, Chief Justice William Rehnquist, the author of Posadas, joined Thomas’ opinion for the Court in Rubin without offering any defense of his earlier views.

44 Liquormart and the dangers of government promotion of consumer ignorance
Similar issues were presented the following year in 44 Liquormart, Inc. v. Rhode Island (1996), but Justice Thomas now chose to stake out an independent stance, more protective of the First Amendment rights of marketplace actors, and rejected the Central Hudson balancing test that the Court had used since 1980. In 44 Liquormart, the Court (in a series of fractured opinions) unanimously rejected a Rhode Island attempt to prohibit both retailers and the media from truthfully advertising the prices of alcoholic beverages.

Thomas, however, went beyond the Court’s opinion and, building on his Rubin analysis, offered a concurrence that rejected all such “paternalistic” regulatory schemes designed to keep consumers “ignorant in order to manipulate their choices in the marketplace.” For the first time, he decried the Central Hudson test itself, as inconsistently applied by the Court and insufficiently protective of constitutional rights, and proposed a strong First Amendment strict-scrutiny test instead. According to Thomas, the fundamental premise of Central Hudson, that commercial speech should be treated differently from other First Amendment expression, was flawed: “I do not see a philosophical or historical basis,” he argued, to treat “commercial” speech as “lower value” than “non-commercial” speech.

Thomas concurred again in Greater New Orleans Broadcasting Association v. United States (1999), in which Justice Stevens, writing for the Court, struck down a federal law banning radio and television stations from disseminating truthful, nonmisleading advertisements for casino gambling. In his Greater New Orleans concurrence, Thomas offered a short opinion that restated his 44 Liquormart concurrence rejecting Central Hudson as the applicable standard for evaluating irrational government programs designed to foster consumer ignorance.

Then, in Lorillard Tobacco Co. v. Reilly (2001), Thomas extended his 44 Liquormart and Greater New Orleans reasoning to a case denying the state’s right to enact restrictions on truthful advertising promoting another legal product, tobacco, where the government offered the justification that it was preventing advertisements aimed at adults because it was protecting minors. He again rejected the Posadas and Edge Broadcasting theory that there was a “vice” exception to the First Amendment. Thomas said he shared “the Court's view that the regulations fail even the intermediate scrutiny of Central Hudson. At the same time, I continue to believe that when the government seeks to restrict truthful speech in order to suppress the ideas it conveys, strict scrutiny is appropriate, whether or not the speech in question may be characterized as ‘commercial.’ I would subject all of the advertising restrictions to strict scrutiny and would hold that they violate the First Amendment.”

Citing his concurrence in 44 Liquormart, Justice Thomas added: “In my view, an asserted government interest in keeping people ignorant by suppressing expression ‘is per se illegitimate and can no more justify regulation of “commercial” speech than it can justify regulation of “noncommercial” speech.’” The conclusion of his Lorillard concurrence illustrates the breadth of this commitment to a seamless marketplace of ideas, whether political or commercial in origin, notwithstanding government arguments that anti-speech regulations may prevent major harms:

“No legislature has ever sought to restrict speech about an activity it regarded as harmless and inoffensive. Calls for limits on expression always are made when the specter of some threatened harm is looming. The identity of the harm may vary. People will be inspired by totalitarian dogmas and subvert the Republic. They will be inflamed by racial demagoguery and embrace hatred and bigotry. Or they will be enticed by cigarette advertisements and choose to smoke, risking disease. It is therefore no answer for the State to say that the makers of cigarettes are doing harm: perhaps they are. But in that respect they are no different from the purveyors of other harmful products, or the advocates of harmful ideas. When the State seeks to silence them, they are all entitled to the protection of the First Amendment.”

Subsequent opinions have confirmed Justice Thomas as an aggressive defender of First Amendment rights to commercial speech, with a consistent viewpoint that strict scrutiny must be applied even in commercial-speech cases. Thus, he dissented in Glickman v. Wileman Brothers & Elliott, Inc. (1997), where the Court endorsed compelled subsidization of commercial speech, concurred in United States v. United Foods, Inc. (2001), which rejected such compelled subsidization, and then concurred in Johanns v. Livestock Marketing Association (2004), which finally allowed such forced subsidies under the theory that the funds promoted government speech, and in each case stressed his view that commercial speech must be judged against the same standards applicable to noncommercial speech. He took the same position in Thompson v. Western States Medical Center (2002), again citing his 44 Liquormart opinion and advancing his view that commercial speech regulations aimed at keeping consumers “in the dark” should be subjected to a strict-scrutiny test.

Journey to robust protection of commercial-speech rights
Now a consistent supporter of full constitutional protections for commercial speech, Justice Thomas has made a long intellectual journey, from weakened and inconsistent protections under Central Hudson in his early years, to a robust application of the Central Hudson analysis in Rubin as he confronted the “irrationality” of government overregulation, and finally, with his 44 Liquormart concurrence, to a decisive rejection of Central Hudson as doctrinally insufficient under the First Amendment. As Thomas had commented during his confirmation hearings: “Well, I think that speech — we value all of our speech.” His commercial-speech jurisprudence eventually followed that logic.

Today, at least for the typical commercial-speech case, Justice Thomas occupies the Court’s strict-scrutiny outpost, having concluded that ignorance is not a valid government goal and that Americans’ rights of free speech should be defended and promoted consistently, whether they are acting as citizens or as consumers.

Bruce Johnson is a partner in the Seattle office of Davis Wright Tremaine LLP. He is the co-author, with Steven G. Brody, of the Practising Law Institute treatise, Advertising and Commercial Speech: A First Amendment Guide (2d Ed. 2007).

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