enough to make nie take up smoking in protest. Yet the posihonrnthat commercial speech is no different from other fonns ofrnspeech remains verv much a minoritv’ viev’—altliougli it mavrnbe on the ascendant.rnUntil ver- recently, the Supreme Court took the position thatrncommercial speech was not speech at all. The theorv’ seemedrnto be that “commercial speakers” were just interested in makingrnmoney, not in exploring the political and moral concepts, orrnperhaps literary and philosophical ideas, that the drafters of thernFirst Amendment were interested in promoting. Commercialrnspeech could fend for itself If the commercial speaker had anrneconomic stake in the matter, he would manage to get his messagernacross. Moreover, if the government could prohibit thernsale or manufacture of particular products (and nothing in thernBill of Rights or the Constitution forbids such prohibitions),rnthen snreK’ speech that promoted the sale of products could alsornbe prohibited.rnThere are reasons to belie e that the First Amendment actuallyrnwas intended only to protect political speech, andrnthat the evil against which it protected was the suppression ofrncriticism of unjust governments. Moreover, at the time of thernAmerican Founding, and into the early 19th centun,-, there wasrna widespread belief, particularly among the goerning classes,rnthat commerce itself was corrupting. ‘I’his attitude has not entirelvrnanished in England, where, in certain circles, one stillrnhas to apologize for dabbling in the market, hi the late 18thrncenturv’, many Americans belieed that trade led to luxun, andrnthat luxur)’ led to the corruption of republican virtue. I’he piusnitrnof wealth made one selfish, unconcerned about one’s fellowrncitizens, and thus unfit for the exercise of political altruism.rnThomas Jefferson worried about the corrupting influence ofrncommerce in general and a central bank in particular, andrnsought to undermine Alexander Hamilton’s financial schemes.rnFlaving failed, Jefferson left George Washington’s Cabinet andrnreturned to his glorious MonticcUo. From there, he propoundedrnhis theor}’ that America ought to be populated b’ simple yeomanrnfarmers earning subsistence from the land and avoidingrnthe temptations of trade.rnDespite the general agreement that commerce was potentiallyrncorrupting, there were men like Hamilton who beliexedrnthat this countn,-, unless it became a great commercial republic,rnwould never have the resources to defend itself against rapaciousrnEuropean powers, hi the struggle with Jefferson, Hamiltonrnwon. We got a national bank; we funded the national debt;rnand the story of the 19th century was one of virtually unrestrainedrncommercial expansion. And, in fairness to Hamiltonrnand my colleague Redish, even the early histon,- of freedom ofrnthe press was not free from tiie taint of commercial speech, hirna 1996 case declaring that states could no longer ban accuraternadvertising regarding the prices of alcoholic beverages, thernSupreme Court observed:rnAdvertising has been a part of our culture throughout ourrnhistory . . . Early newspapers displayed advertisements forrngoods and services on their front pages, and town criersrncalled out prices in public squares . . . hidced, commercialrnmessages played such a central role in public life priorrnto the Founding that Benjamin Franklin authored hisrnearly defense of a free press in support of his decision tornprint, of all things, an advertisement for -oyagcs to Barbados.rnEven so, it was not until 1975 tiiat the Supreme Court ruledrnthat commercial speech was entided to First Amendment protection,rnhi a seven-to-two decision (Blackmim for the majorih’,rnRehnquist and Powell dissenting), the Court declared that anrnadertisement in a Virginia newspaper offering abortion ser-rnices in New York was speech protected by tiie Constitution, hirnrecent years, the right to have an abortion seems to haverntrumped all other constitutional rights, including the freespeechrnrights of anti-abortion protesters. Thus, it is perhaps notrnsurprising that the first case declaring constitutional protectionrnfor commercial speech concerned abortion.rnSince that ruling, it has been anybodv’s guess as to whichrntpcs of commercial speech are protected. The trend is to protectrnmore and more commercial speech, including advertisementsrnfor casino gambling, prescription drugs, liquor, lawvers’rnserxices, and clectricih’. Howexer, the Court has not been ablernto bring itself to declare that there is no difference betweenrncommercial speech and political speech.rnFor “favored kinds” of First Amendment speech, some regulationrnis permitted, including reasonable time, place, and mannerrnrestrictions —to this day, you cannot drive your soiuid truckrnthrough a residential district at 2:00 A.M., blaring your pro-abortionrniews. The presumption, though, is against any regulation,rnespecially those which impose a partial or complete ban. Covernmentrnmust demonstrate a “compelling interest” (wliateerrntiiat is —no one is quite sure), and the means of regulation chosenrnmust be the least restrictive available.rnThus, in a June 2000 decision, the Supreme Court declaredrnthat Playboy’s adult cable channels, the Playboy Channel andrnSpice, although perhaps “indecent,” were not obscene. ThernCourt held that the adult channels could not be banned fromrndavtime broadcast as long as individual subscribers had the optionrnof requesting that their cable coni])any block the channelsrnfrom tiieir homes. I’lie Court conceded that the federal governmentrnhad a “compelling interest” in protecting childrenrnfrom indecency, but because there was a less restrictive alternatix’crna’ailable, the government’s daytime ban could not stand.rnSince there is usually a less-restrictive alternati’e, virtually all attemptsrnto regulate or ban non-commercial speech fail. (Thosernwho wonder why Spice and the Plaxboy Channel were notrnsimply declared obscene, and thus not protected under the FirstrnAmendment, have an ally in Justice Scalia. And those whornwonder why the Playboy Channel and Spice are not consideredrncommercial speech, since thev are sold for a profit, do not understandrnthat, in the Court’s view, the fact that you earn moneyrnfrom speech docs not make it “commercial.” “Commercialrnspeech” is a term reserved for advertising. No justice seemsrntroubled by this limitation.)rnSo vhat tests are applied to the second-class catcgor’ of commercialrnspeech? ‘I’hey differ depending on whether the regulationrnin question is a complete ban or a supposedly benign restrictionrndesigned to prevent deception, hi the Court’s view,rn”when a State regulates commercial messages to protect consumersrnfrom misleading, deceptive, or aggressive sales practices,rnor requires the disclosure of beneficial consumer information,rnthe regidation’s purpose is consistent with the reasonsrnfor according constitutional protection to commercial speechrnand therefore justifies less than strict review.” But “where arnState entirely prohibits the dissemination of truthful, nonniisleadingrncommercial messages for reasons unrelated to thernpreservation of a fair bargaining process, there is far less reasonrnto depart from the rigorous review that the First Amendmentrn20/CHRONlCLESrnrnrn