MICHAEL CEFALI in San Juan Capistrano, CA, and Scott McLean in Alexandria, VA, just wanted to sell their cars. So they did what any American might do and put a “for sale” sign in their car windows. But until PLF stepped in, local bureaucrats fined both men merely for advertising their vehicles for sale, claiming that the First Amendment didn’t protect the sellers because they were engaged in commercial activity.
Fortunately, Michael and Scott decided to fight back and brought in PLF. For years, PLF has fought for the right to speak freely in commerce—and it’s not just about “for sale” signs.
Commercial speech is a part of daily life. Most of us see billboards, internet ads, and television spots every day. This speech serves an important function of communicating information about goods and services. Sellers have a right to speak about their products and consumers often rely on that information when they buy.
Unfortunately, the courts currently treat people differently when they communicate while doing business than those who communicate through politics or art. This judge-made distinction is both inconsistent and unconstitutional and can leave so-called commercial speakers unprotected from burdensome government regulations. Furthermore, the courts’ inconsistency causes commercial speakers to face increasing uncertainties in today’s world.
Take music videos, press releases, and social media, for example. Where does one draw the line between artistic expression and selling music, or between a major public announcement and selling a product? Perhaps the most pronounced case of blurred lines is on social media. For instance, is a corporate Twitter account engaging in commercial speech when tweeting sales offers and announcements? What about tweets offering support for a cause, educating consumers, or teasing the competition?
These are important questions, but courts struggle to answer them because they inconsistently treat commercial speech differently than other types of speech. That doesn’t make any sense for a number of reasons.
First, there is no philosophical or historical basis for affording commercial speech less protection than other categories of speech.
Second, it is often as important to receive information about the quality of goods or their prices as it is to hear arguments about the most serious political debate of the day. After all, do most people spend more time researching their next vehicle purchase or the candidates on a ballot before voting?
Third, lax judicial oversight means government can use business regulation to manipulate consumer choices by suppressing accurate “commercial” information. Indeed, it is dangerous for government to pursue any objectives by using the law to keep people ignorant—and that is as true in commercial matters as in political or artistic ones.
For these reasons, and others, PLF advocates that all speech deserves full First Amendment protection.