Commercial Speech Protection as Consumer Protection

The Supreme Court has long said that “the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides.” In other words, consumers—the recipients or listeners of commercial speech—are the ones the doctrine is meant to protect. In previous work, I explored the implications of taking this view seriously in three contexts: compelled speech, speech among commercial entities, and unwanted marketing. In each of those contexts, adopting a listener-oriented approach leads to the conclusion that many forms of commercial speech regulation should receive far less First Amendment scrutiny than most courts have given them. In that earlier work, I distinguished those forms of regulation from the more classic case of a regulation that directly prohibits or restricts some form of commercial communication to consumers. This Essay tackles that case. What if we reimagined commercial speech protection as a form of consumer protection, or at least as a doctrine aligned with consumer protection rather than opposed to it? That would mean that when government regulations do not impinge on the information available to consumer-listeners, courts should not apply the same kind of heightened scrutiny that they do when consumer listeners are being kept in the dark, even if those regulations may harm the interests of the commercial speakers. Commercial speech doctrine cares primarily about informing consumers, and that is the lens through which courts should determine how much scrutiny to give to a commercial speech restriction. In commercial speech cases, courts should not be applying the kind of speaker-focused approaches they would be using in cases involving noncommercial speech. This Essay begins by briefly reviewing the doctrinal and theoretical support for the proposition that commercial speech doctrine is about protecting consumers. Then, using the exaple of state no-surcharge laws (which generally prohibit charging customers more to use a credit card but permit cash discounts), I will argue that laws such as these that do not restrict the information available to consumers should not be subject to heightened scrutiny under the First Amendment. Finally, I will discuss the broader implications of this perspective for other laws that regulate the framing of consumer information and thus regulate consumer “nudges.