ERIC Number: ED165181
Record Type: RIE
Publication Date: 1977-Aug
Reference Count: 0
A Case Against First Amendment Protections for Commercial Advertising.
Middleton, Kent R.
Although extending constitutional protection to commercial expression might benefit the consumer, the First Amendment is the wrong instrument for carrying out what are basically economic policies. While in most First Amendment cases the nature of the content determines whether it is constitutionally protected, advertising is distinct in that it draws its meaning or identification from the product or service it promotes. The eighteenth century offers little proof that the framers of the Bill of Rights would have excluded commercial advertising, since commerce and expression were not distinct concepts at that time. However, the free trade of ideas for the effective functioning of a democracy, which is emphasized in the First Amendment, is not the same as the free trade involved in commerce. Protecting advertising weakens the First Amendment in that it requires more administrative regulation, and the protection of false ideas (intended for democratic debate on important issues) is misleading for the consumer. If the courts wish to deal with advertising as a constitutional issue, they can rule that bans on advertising violate the Fifth and Fourteenth Amendments by depriving persons of liberty or property. (MAI)
Publication Type: Speeches/Meeting Papers
Education Level: N/A
Authoring Institution: N/A
Note: Paper presented at the Annual Meeting of the Association for Education in Journalism (60th, Madison, Wisconsin, August 21-24, 1977)