beer, Santa, and commercial speech

Santa likes beer.jpg

Over at PrawfsBlawg, Rick Garnett posts the following:

Free-speech beer

“Ban on Saucy Beer Labels Brings a Free Speech Suit,” the New York Times reports.

Santa Claus will not be coming to Maine this year, at least not on a beer label, if state officials have their way.

The state’s Bureau of Liquor Enforcement in September rejected three beer labels proposed by Shelton Brothers, a Massachusetts beer importer, including one for “Santa’s Butt Winter Porter” that depicts St. Nick from behind, checking a list and drinking a beer, his ample posterior on a wooden barrel.

The bureau said the labels violated a regulation stating that alcohol advertisements cannot contain “undignified or improper illustrations.”

Sorry, I couldn’t resist.

This fact scenario is pretty amusing. But it also makes me think about a First Amendment issue over which I’ve long been torn – the appropriate level of protection for commercial speech. I’m curious as to opinions that others may have on the matter. So I’ll begin with a bit of background on the issue and then I’ll end with a question.

There’s a longstanding debate on this matter in the scholarship. Just to give a few examples, Marty Redish argues that self-realization is the core First Amendment value, that this value is infringed every time the state limits the information that we may disseminate or that we may gather to inform ourselves of matters impacting major and minor life choices. From this, he argues, it follows that information about our daily commercial decisions should be protected at the same level as political and other forms of speech. (See, e.g., Redish, The Value of Free Speech, 130 Penn. L. Rev. 591 (1982))Ed Baker focuses on the autonomy of the speaker and argues that commercial speech is less valuable than political and some other forms of speech from this perspective because commercial speech is motivated by an individual’s desire for commercial gain, not necessarily by their true beliefs. (See, e.g., Baker, Realizing Self-Realization: Corporate Political Expenditures and Redish’s The Value of Free Speech.) On the other hand, Alexander Meikeljohn deems the facilitation of self-government the core free speech value. (See, e.g., MEIKLEJOHN, FREE SPEECH AND IT’S RELATION TO SELF-GOVERNMENT (1948))From this perspective, commercial speech is of lesser value and deserves less protection.

The Supreme Court has been as confused about this question over the years as the next person, gravitating from a position of no protection for commercial speech to varying levels of protection for the same. At present, perhaps the most frequently invoked doctrinal test for assessing commercial speech regulations is called the Central Hudson test, named for a case called Central Hudson Gas & Electric v. Pub. Svce. Cmmn.

The central Hudson test asks if:

1. The regulated speech concerns an illegal activity,

2. The speech is misleading, or

3. The government’s interest in restricting the speech is substantial, the regulation in question directly advances the government’s interest, and the regulation is no more extensive than necessary to serve the government’s interest. (The Court in later cases explicitly referred to question 3 as “intermediate scrutiny,” as distinct from rational basis review or the strict scrutiny that “high value” speech regulations receive).

As I said at the beginning, I’ve long been torn on the commercial speech front. I’m inclined of late to side with the notion that free speech, at its core, is most about facilitating the process of self-government and checking of our governors. At the same time, I think that we must protect other forms of speech partly because of the difficulty of separating out the different types, the politically and socially relevant content potentially present in any and all types of speech (perhaps by definition in cases where people find speech content culturally or otherwise objectionable), and the values, such as individual autonomy, etc., with which self-government itself is intertwined (this last point is a major part of Redish’s argument, by the way)).

From this perspective, I’m inclined to think that time, place and manner restrictions that give more advantage to political versus commercial speech (say, phone solicitation restrictions that do not apply to political groups) often will be acceptable, and that fraud restrictions on commercial speech can be more stringent than those on defamatory speech in the context of debate about politics or public figures. At the same time, I’m very wary of lowering the bar on restrictions for content that occurs within commercial speech and that doesn’t involve lying about the market transaction – say, oh, I don’t know, a state restriction on offensive usage of Santa in beer advertisements! My concern is that the value of the genre as a whole (commercial speech) is different from the value of the content within a given product of the genre. As with any speech, there is no telling what content of what social or political relevance will pop up within a given bit of commercial speech. So perhaps there’s something to be said for allowing more sweeping regulations of the genre as a whole (especially where space, etc., is limited), more sweeping regulations of the genre that involve truth about the commercial transactions at stake, but broad protections of content within the genre that don’t relate to factual truths.

For free speech doctrine nerds (totally unlike myself), you’ll note that this in many respects is an “R.A.V.” type analysis.

I’m curious as to the views that others might have on this front. Any thoughts?

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6 Responses

  1. John Armstrong says:

    This is going to throw off the whole slogan for the FSF

  2. Howard Wasserman says:

    I think your conclusion basically is right. “Commercial speech” (i.e., advertising and product publicity) today (and probably historically) contains some of the best artistic, political, and social expression, commentary, and parody/satire (such as in the beer label). That parody exists separate from the “proposal of a commercial (or market) transaction.” And it cannot lose its full protection simply because it appears on a product label, rather than in, say, a protest against government-sponsored Christmas displays.

  3. Heidi Kitrosser says:

    It is interesting, by the way, that the R.A.V. doctrine has not clearly altered step 3 (which effectively serves as the content regulation analysis step) of the Central Hudson test. And the Court’s had an opportunity to take that step since R.A.V., but they haven’t done it. Perhaps, ironically, the fact that commercial speech generally gets much more protection than “unprotected” speech like obscenity, incitement, etc., has made the Court feel that it’s unnecessary to leap to the extreme of strict scrutiny for regulations of content within the commercial speech category. Or perhaps there’s an unspoken sense that content within categories like incitements, threats, etc. are more likely to be of “high value” (say, political).

  4. I’d like to have some level of taste and decorum to balance out cruder expressions, but as always, who is to judge for us? The Santa’s Butt label is humorous and harmless, to me.

    On a semi-related note and along the lines of John’s comment, have you heard about the truly free as in free speech beer? Lawrence Lessig wrote about it for Wired: “Free, as in Beer”

  5. Heidi Kitrosser says:

    Ann, now I know what to do for my holiday shopping! 🙂