generally demands.” Whenever there is an attempt to ban eommercialrnspeech, the Court asks a series of questions, including,rnto quote from the official syllabus of the 1999 commercialspeechrncase involving advertising of casino gambling: “(1)rnwhether the speech at issue concerns lawful activit)’ and is notrnmisleading and (2) whether the asserted governmental interestrnis substantial; and, if so, (3) whether the regulation directly advancesrnthe governmental interest asserted and (4) whether it isrnnot more extensive than is necessar)’ to scn’c that interest.”rnThese four tests arc not identical to the ones applied in casesrnof non-commercial speech. To ban or regulate non-commercialrnspeech requires a “compelling” governmental interest, butrnfor commercial speech all that is necessar)’ is a “substantial” interest.rnTo sustain a ban or regulation of non-commereialrnspeech there must be no less restrictive alternative, but for commercialrnspeech a regulation can be upheld if “it is not more extensivernthan is necessar)’ to scn’e that [substantial] interest.” hirntheorv, at least, it is easier for government to prohibit or regulaterncommercial speech, and the Court has suggested that it will notrnrequire absolute proof that a regidation “is not more extensivernthan necessary,” deferring instead to legislatures.rnNonetheless, these four commercial-speech tests give justicesrnplentv’ of freedom to strike down or sustain the regulationrnof commercial speech at whim. They are the sort of “balancingrntests” popular with justices such as Sandra Day O’Connor, whornseem to view the justices’ role as that of super-legislators. Suchrn”balancing tests” are, at bottom, a way for the justices to implementrntheir personal policy choices. Justice Clarence Thomas,rntlie Court’s most outstanding practitioner of plain speaking, understandsrnthis. Thomas rejects the four-part test for commercialrnspeech, declaring tiiat where “the government’s asserted interestrnis to keep legal users of a product or service ignorant in orderrnto manipulate their choices in the marketplace,” the four-partrnbalancing test should not be applied because “such [a governmentalrninterest] is per se illegitimate and can no more justifyrnregulation of’commercial’ speech than it can justify’ regulationrnof’noncommercial’ speech.” For Thomas, “all attempts to dissuadernlegal choices by citizens by keeping them ignorant arernimpermissible.”rnThomas’s stance is viewed sympathetically by some of hisrncolleagues, most notably Justice Scalia, who has not gone so farrnas Thomas. Scalia is the Court’s champion of original understandingrnand judicial restraint, and while some of his other FirstrnAmendment decisions go much further in widening the scopernof the First Amendment, he is more cautious about commercialrnspeech. For Scalia,rnit would . . . be paternalism for us to prevent the people ofrnthe States from enacting laws that we consider paternalistic,rnunless we have good reason to believe that the Constitutionrnitself forbids them. I will take my guidance as tornwhat the Constitution forbids, with regard to a text as indeterminaternas the First Amendmenf s preservation ofrn”die freedom of speech,” and where the core offense ofrnsuppressing particular political ideas is not at issue, fromrnthe long accepted practices of the American people.rnThere may be an underlying philosophy ginding thernCourt’s First Amendment jurisprudence, and it ought torngive pause to those who might be tempted to treat commercialrnspeech as if it were any other kind of speech. In the recentrnSupreme Court decision rejecting the regulation of the PlayboyrnChannel and Spice, Justice Kennedy conceded,rnWlien a student first eneoimters our free speech jurisprudence,rnhe . . . might think it is influenced by the philosophyrnthat one idea is as good as any other, and that in artrnand literature objective standards of sh’le, taste, decorum,rnbeaufy’, and esthetics are deemed bv the Constitution tornbe inappropriate, indeed unattainable.rnPerhaps Justice Kennedy did not go far enough, because at leastrnone law professor (me) —after 25 years of encountering thernCourt’s free-speech jurisprudence —cannot help but think it isrnmotivated by a rejection of the Framers’ belief that there couldrnbe no order without law, no law without morality, and nornmoralify without religion.rnFor Justice Kennedy,rnThe Constitution no more enforces a relativistic philosophyrnor moral nihilism than it does any other point ofrnview. The Constitution exists precisely so that opinionsrnand judgments, including esthetic and nroral judgmentsrnabout art and literature, can be formed, tested, and expressed.rnWliat the Constitution says is that these judgmentsrnare for the individual to make, not for the Governmentrnto decree, even with the mandate or approval of arnmajorify.rnThis is the same philosoph)’ expressed in the notorious “mystery’rnpassage” oi Planned Parenthood v. Casey (1992), of whichrnJustice Kennedy was one of the three authors. (None daredrnclaim individual credit.) According to the passage, “At the heartrnof liberfy is the right to define one’s own concept of existence, ofrnmeaning, of the universe, and of flie myster’ of human life. Beliefsrnabout these matters could not define the attributes of personhoodrnwere tiiey formed under compulsion of the State.”rnThe mystery passage has been invoked to support all kinds ofrnphony constitutional rights, including the “right to die” and thernright to enter into same-sex marriages. Proponents of the viewrnthat self-actualization is the end of our republican form of government,rnsuch as my colleague Redish, take an absolutist viewrnof commercial speech: They see no difference between it andrnpolitical speech; bodi expand opportunities for individuals.rnThey would no more allow the government to interfere with advertisingrnthan with voting. Anyone with libertarian tendenciesrncannot help being attracted to that view, but it was not that ofrnthe Framers. They placed a higher value on political speech,rnbelieving that the welfare of the eommunify- and the encouragementrnof altruism, not the actualization of the individual, wasrnthe goal of government.rnThose who arc ambivalent about, or hostile to, governmentrnpromoting moralify’ (as are a majoritv’ of the current justices ofrnthe Supreme Court), will be comfortable with the trend to treatrncommercial speech (and Playboy’s programming) as if it werernno different from the views expressed in the Federalist. However,rnif you adhere to flic Burkean notion, shared by the Framers,rnthat the encouragement of virtue is a government function, andrnthat this is a primary job for state and local governments, thernemerging trends in commercial-speech jurisprudence arerncause for worry.rnOCTOBER 2000/21rnrnrn