scholarly journals Labor Picketing and Commercial Speech: Free Enterprise Values in the Doctrine of Free Speech

1982 ◽  
Vol 91 (5) ◽  
pp. 938 ◽  
Keyword(s):  
Free Speech ◽  
Free Enterprise ◽  
Commercial Speech

scholarly journals Can Speech by FDA-Regulated Firms Ever Be Noncommercial?

2011 ◽  
Vol 37 (2-3) ◽  
pp. 388-421
Author(s):  
Nathan Cortez
Keyword(s):  
Drug Administration ◽  
First Amendment ◽  
Free Speech ◽  
Regulatory Scheme ◽  
Commercial Speech ◽  
Federal Food ◽  
Regulated Firms ◽  
The Supreme Court ◽  
Regulated Firm ◽  
Free Speech Rights

For over a century, the Food and Drug Administration (FDA or the Agency) and its precursors have regulated what companies say about their products. The FDA itself notes that the regulatory scheme imposed by the Federal Food, Drug, and Cosmetic Act “depends on the use of words” and that its requirements can “explicitly limit speech.” For seventy years, the FDA had little reason to worry about First Amendment constraints. But since 1976, when the Supreme Court reversed its longstanding position that the First Amendment does not protect commercial speech, the Agency has had to confront–perhaps more than any other federal agency–the free speech rights of regulated firms.But how far do those rights extend, and what room do they leave for regulators like the FDA? The answer largely depends on another question: Is the speech commercial or noncommercial? The distinction is paramount. If speech by a regulated firm is commercial, then the FDA can ensure that it is not false or misleading; the Agency can require or compel certain speech; it can impose prior restraints; and it can even limit truthful speech, all within certain parameters.

THE POLITICS OF FREE SPEECH

2004 ◽  
Vol 21 (2) ◽  
pp. 23-47
Author(s):  
Scott D. Gerber
Keyword(s):  
Deliberative Democracy ◽  
Free Speech ◽  
Constitutional Law ◽  
Hate Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
Commercial Speech ◽  
Free Theory ◽  
Legal Theorist ◽  
The U.S

Freedom of speech long has been regarded as one of the “preferred freedoms” in the United States: one of the freedoms the U.S. Supreme Court deems “implicit in the concept of ordered liberty.” However, what freedom of speech does—and should—mean is a highly charged question in American constitutional law. I will explore this question by examining how several prominent constitutional theorists have proposed particular approaches to free speech law in order to further their political objectives. I will examine the free speech theories of the nation's leading feminist legal theorist (regarding pornography), critical race theorists (regarding hate speech), libertarian (regarding commercial speech), and legal republican (regarding deliberative democracy). I also will discuss the principal criticisms of each of these theories, whether the courts have been influenced by any of them, and, in conclusion, whether it is possible to advance a nonpolitical (i.e., a purely law-based or value-free) theory of free speech.

The Right to Advertise: The Cigarette Debate

1984 ◽  
Vol 31 (1) ◽  
pp. 42-46
Author(s):  
Michael Blakeney ◽  
Jill McKeough
Keyword(s):  
Free Speech ◽  
Self Regulation ◽  
Free Enterprise ◽  
Cigarette Advertising ◽  
The Right

The paper examines the slogan that ‘if a product is legal to sell, it should be legal to advertise’ and finds it indefensible. The veracity of free speech and free enterprise arguments in relation to cigarette advertising is examined. It is argued that pro-advertising proponents of such arguments often deny the freedoms they claim for themselves to others. Self regulation and its implications and the continued legality of the sale of cigarettes are examined.

Free Speech, Free Markets & the Death of Trademark Law

2018 ◽  
Vol 5 (1) ◽  
pp. 61-77
Author(s):  
Shubha Ghosh
Keyword(s):  
Free Speech ◽  
United States Supreme Court ◽  
Free Expression ◽  
Public Address ◽  
Ongoing Debate ◽  
Free Markets ◽  
Trademark Law ◽  
Commercial Speech ◽  
Economic Liberalism ◽  
The Relationship

Building on a public address given at NLU-Delhi in May, 2016, this Article examines the question of the relationship between economic liberalism and democracy. Is it a contradiction, or even a matter of concern, for a society to have free speech but not free markets, as Ronald Coase suggested? The Article resolves the tension through a consideration of the two different meanings of freedom and the differing, even if overlapping, goals of markets and politics. The ongoing debate over free expression and trademarks serves to anchor the argument with the main conclusion that commercial speech offers a unique example for economic liberalism and democracy, one that is distinct from the need for a multiplicity of viewpoints in the marketplace for ideas. The Article examines these ideas both in current United States Supreme Court jurisprudence and in global debates.

scholarly journals Uneven Epithets

2019 ◽  
Vol 5 (4) ◽  
Author(s):  
Nicole Ramsoomair
Keyword(s):  
Free Speech ◽  
Mental Development ◽  
Thought Processes ◽  
Commercial Speech ◽  
General Regulation

In this paper, I derive a test for distinguishing between derogatory terms by expanding upon Seana Shiffrin’s recent “thinker-based approach.” Protection on her account extends to many forms of speech due to a connection between speech and an individual’s development of autonomous thought. Shiffrin questions whether there is protection for corporate and commercial speech. The latter have a tendency to interfere with autonomous thought processes and do not clearly serve their development. I argue that these reasons for limitation serve as a basis for making nuanced distinctions for general regulation and applying this approach to controversies surrounding derogatory team names in sport. Many kinds of speech can be offensive and derogatory, yet I argue that only some may be said to be parasitic on communicative endeavors and legitimately fall outside free speech values as a result. Regulation should not be concerned with the content of speech, the manner in which certain words are spoken, or even the speaker’s positive or negative intent. Instead, the focus should remain on autonomous mental development of speakers and hearers.

Free Speech and Commercial Advertising

2021 ◽  
pp. 443-454
Author(s):  
Frederick Schauer
Keyword(s):  
Free Speech ◽  
Government Regulation ◽  
Relevant Literature ◽  
Freedom Of Speech ◽  
The United States ◽  
Theory And Practice ◽  
Commercial Speech ◽  
Contemporary World ◽  
Goods And Services ◽  
Commercial Advertising

This chapter studies the relationship between free speech and commercial advertising. In the contemporary world, a substantial percentage of the universe of public communication consists of advertising. Speech offering to sell goods and services, typically with inducements to purchase, and often including the price and other conditions of the proposed sale, is a ubiquitous part of modern life. An important question in the theory and practice of freedom of speech is the extent to which, if at all, such communications should be protected against government regulation. Given that the United States is something of a protective outlier on free speech questions generally, even when compared to other liberal industrialized democracies, it is not surprising that free speech protection for commercial advertising is more robust in American law than it is anywhere else in the world. But the question has arisen in many other countries that profess to take the freedom of speech seriously, and thus the chapter will deal with the question of free speech protection for commercial advertising of some sort and to some degree as a question with worldwide implications, and with both theoretical and doctrinal dimensions. It is common in much of the relevant literature to refer to the topic under discussion as ‘commercial speech’.

Free Speech Categories in the Digital Age

2019 ◽  
pp. 88-103
Author(s):  
Ashutosh Bhagwat
Keyword(s):  
Social Media ◽  
Free Speech ◽  
Public Discourse ◽  
The Political ◽  
Liberal Democracies ◽  
The Public ◽  
Commercial Speech ◽  
Private Autonomy ◽  
Private Actors ◽  
Public Versus Private

Modern free speech law in liberal democracies is oriented around some basic, categorical distinctions. This chapter examines four such categories: speech versus conduct (speech generally receives far greater protection than non-expressive conduct); public versus private actors (most legal systems place sharp limits on public regulation of free expression but generally protect private autonomy); political versus commercial (speech related to economic transactions is subject to greater regulation than political or cultural speech); and finally, public discourse versus domestic gossip (the former being universally considered more worthy of protection). Without these distinctions modern free speech law would be unworkable, because it would devolve into either radical libertarianism or tyranny. This chapter demonstrates that the evolution of the internet and social media into the primary platforms for commerce and expression has fundamentally destabilized each of these categories. This is because the very natures of a digital economy and a disaggregated social media undermine the distinction between the commercial and the political, as well as between the public and the private. I conclude by arguing that if workable new categories of speech are to be constructed, scholars and decision-makers must start with first principles establishing why free speech remains of paramount importance today.

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