First Amendment Speculation and Conjecture

Abstract

Given the facial differences between commercial and noncommercial speech analysis, conventional wisdom suggests noncommercial speakers receive more protection than commercial speakers. The conventional wisdom is correct to some extent; federal regulators impose an extensive and complex set of rules on commercial advertising that have no analogs for noncommercial speech. However, a careful comparison shows that once the U.S. Supreme Court is asked to scrutinize speech regulations, the commercial speech doctrine's relatively weaker rhetoric comes with stronger de facto scrutiny. Once commercial speech was afforded First Amendment protection the Court steadily began to develop two separate, distinct analytical frameworks between commercial and noncommercial speech. While using these separate frameworks, the Court counter-intuitively (and not altogether consciously) subjects government interests asserted in commercial speech cases to a higher burden. Meanwhile, outside core political speech, the Court has continued to permit speculation to serve as a basis for the censorship of noncommercial speakers. This essay offers a modest proposal: the “no speculation” rule established for commercial speech precluding governmental regulations based on speculation and conjecture should apply with equal force to noncommercial speech. Part I will trace the development of the no speculation or conjecture limitation in the commercial speech doctrine. Part II demonstrates that the Court has avoided using the probing “no speculation” rule in noncommercial speech cases, allowing the government to regulate noncommercial actors based on speculative and untested assumptions. Part III outlines the theory of the no speculation or conjecture test and explores the implications of equally applying the no speculation or conjecture test to all free speech claims.