From the founding period until late in the 20th century, the court never ruled that the First Amendment protects commercial advertising. Then suddenly, in 1976, it reversed course with a decision in a case brought by Virginia consumers who objected to a law that barred pharmacists from advertising prescription drug prices. Emphasizing that consumers have a keen interest “in the free flow of commercial information,” the court ruled that the state could not forbid truthful, nondeceptive advertising.
In dissent, Justice William Rehnquist objected to the “far reaching” implications of “a decision which elevates commercial intercourse between a seller hawking his wares and a buyer to the same plane as had been previously reserved for the free marketplace of ideas.” If anything, Rehnquist understated the implications.
As my colleague John Coates, a professor of law at Harvard, hasdemonstrated, recent decades have seen a genuine revolution in free speech law. Far from being used to ensure the preconditions for self-government, the First Amendment is being regularly invoked as a barrier to fairly modest regulatory requirements. Ironically, those requirements are usually designed to ensure that consumers are informed.
Birthed by a consumers’ rights decision in 1976, Free Speech Inc. has already been an astonishing success story. The conflict minerals controversy will provide crucial evidence about its future.