The Chickens Have Come HomeTo Roost: Individualism, Collectivism And ConflictIn Commercial Speech Doctrine

Abstract

The Supreme Court of the United States has spent more than two decades constructing its commercial speech doctrine but has failed to articulate a principled approach, which has created disarray in the definition and protection of commercial speech. Analysis of the Court's conception of commercial speech protection, using individualist and collectivist political philosophies, concludes that the Court's commercial speech doctrine has suffered from a fundamental internal conflict arising from the difficulty in choosing one or the other of those political philosophies. That conflict will continue-as will the Court's inability to express a coherent commercial speech doctrine-until the Court makes an overt choice between collectivist and individualist approaches to the protection of commercial speech. The principled solution is for the Court to adopt a strict scrutiny approach to commercial speech, thus giving it protection commensurate with that given ideological speech.