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Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Justin Pearson: You know, I think far too often, in society today, people only care about the rights of their friends and not of their enemies, and they forget that the precedent you create for one will be used for the other one tomorrow.

Recording: Somewhere I read of the freedom of speech. You’re listening to So to Speak, the free speech podcast, brought to you by �鶹��ýIOS, the �鶹��ýIOS.

Nico Perrino: Welcome back to So To Speak, the free speech podcast where every other week we take an uncensored look at the world of free expression through the law, philosophy and stories that define your right to free speech. I am your host, Nico Perrino. As some of you know, the last month or so has been busy in the Perrino household.

My wife and I welcomed our third son into the world and I began in earnest to write my forthcoming book, which is a group biography about the 20th century free speech civil libertarians who made America's so-called free speech century possible. So with all that going on, I was happy to hand the microphone over to Aaron Reese, who was a longtime editor of this podcast and a sometimes producer, who most recently produced episode 162 called Parental Advisory about the history of music censorship in America, which I highly recommend.

In this episode, Aaron goes in a slightly different direction, covering America's history regulating commercial speech. That is speech that proposes a commercial transaction. And what the First Amendment has to say about that kind of speech. In the process, tells some fascinating stories about Coca-Cola, Benjamin Franklin, and yes, even skim milk.

But before I turn the podcast over to Aaron, a quick note that we will record a live episode of So To Speak this Monday, August 11th at 4 p.m. Eastern Time. I'll be speaking with former Treasury Secretary and former Harvard University President Larry Summers, as well as Fire President and CEO Greg Lukianoff. We'll be talking about the Trump administration's campaign against elite universities, including Harvard, what outcomes we can expect from that campaign, and what those outcomes might mean for free speech, academic freedom, and university independence.

We'll be streaming the podcast live on Substack, so be sure to subscribe to us on that platform by clicking the link in the show notes. That will ensure you get a notification when we're about to go live with the stream. I hope to see you all on Monday with your questions. And now, without further ado, here's Aaron Reese with a primer on commercial speech and the First Amendment.

Aaron Reese: Hi, I’m Aaron Reese, and in this episode, we’re going to be talking about commercial speech.

Recording: On January 24th, Apple Computer will introduce Macintosh. In a past life, he was himself. Look down, back up, where are you? You’re on a boat with the man your man could smell like.

Aaron Reese: My job is based in video. So, it shouldn’t come as any surprise that I love commercials. Not so much the constant interruptions when I’m trying to watch something, but I love what goes into making them, and their cultural impact. I love that you can listen to just two notes of a song and know that it’s got to be a truck commercial, that some artists have made billboard charts for a song released years earlier, just because it gets featured in the commercial.

And thinking about the best commercials that are created each year, there’s something so beautiful about a 15 or 30-second piece of video that becomes a cultural touchstone, like Google’s year end search ad.

Recording: The things that make us different? Those are our superpowers. Go out there and conquer the world.

Aaron Reese: When we buy something, though, we have an expectation that there aren’t any surprises about what we just paid for. We all have a First Amendment right to lie, but free speech doesn’t necessarily protect a company to lie about the products that they sell. Companies are allowed to use hyperbole in their commercials, saying that their product is the best on Earth or top quality, but specific claims that lie or bend the truth can mislead customers and be determined to be false advertising, which is illegal.

Recording: The Dannon Company has agreed to a huge settlement over charges it made improper health claims for its yogurt and dairy drinks.

Aaron Reese: There are a number of consumer protection laws that ban deceptive descriptions, quantities, comparisons, and warranties, and over the years, I’ve wanted to understand more about commercial speech law and how it intersects with the First Amendment’s protections for freedom of speech, and by luck, I went to Memphis for a conference, and I met Justin Pearson, a managing attorney for the Institute for Justice.

Justin Pearson: So, my name is Justin Pearson, and I have one of the greatest jobs in the world. I wake up every day and I sue the government. It’s a lot of fun. I highly recommend it. I know there are lawyers at �鶹��ýIOS who could say the same thing. I’m not unique in this regard, but I am a constitutional lawyer at the Institute for Justice, and IJ is the nation’s largest philosophically libertarian public interest law firm. And so, what that means is, I never sue for money and I never charge my clients anything. Instead, I go around the nation providing pro bono representation to people and businesses when their constitutional rights are violated.

Aaron Reese: So, what is commercial speech?

Justin Pearson: Commercial speech is speech proposing a commercial transaction. So, I think sometimes, people get confused. I think anything involving money is commercial, but that’s not what we’re talking about here. Like, if I sell you a book, the fact that you’re paying money for the book doesn’t change that book into commercial speech. It’s only speech proposing a transaction, so, advertising on TV, or a product label, or a billboard, or a “help wanted” sign in a storefront. That’s commercial speech.

Aaron Reese: That’s an important point. Commercial speech refers specifically to speech proposing you to buy a product. That’s it. It doesn’t even necessarily apply to all the speech within a TV commercial. For instance, if you watch the Netflix series, Pepsi, Where’s My Jet? from a couple years ago, it was about a commercial from the 1990s that jokingly showed how you could win a Harrier fighter jet with Pepsi points.

Recording: Now, the more Pepsi you drink, the more great stuff you’re going to get.

Aaron Reese: But the lawsuit that John Leonard, the student in that series, filed against Pepsi, wasn’t a commercial speech case.

Recording: This commercial comes on. Harrier jet, seven million Pepsi points. I really saw this as an opportunity to change my world.

Aaron Reese: The text in the commercial that said, “Seven million Pepsi points can win you a Harrier jet” was for the Pepsi Stuff Loyalty Program.

Recording: I want the jet.

Justin Pearson: It’s commercial speech in terms of, that advertisement is a form of commercial speech, but it wasn’t a First Amendment case, it was a contracts case.

Bob Corn-Revere: The question is whether or not that formed a contract that Pepsi was then bound to honor.

Aaron Reese: This is Bob Corn-Revere, frequent So to Speak guest and �鶹��ýIOS’s chief counsel.

Bob Corn-Revere: That’s not the same thing as regulating commercial speech.

Aaron Reese: So, commercial speech didn’t come into play with Pepsi, Where’s my Jet? And side-note, the court ruled that Pepsi’s commercial was clearly a joke, so, Pepsi won that lawsuit. But that aside, I’ve wondered, are commercials protected by the First Amendment?

Bob Corn-Revere: Commercial speech has been defined as speech that does no more than propose a commercial transaction. So, another way to say it, it’s advertising. Now, if in that same ad, Pepsi had said, “By the way, we’re selling jackhammers, not soft drinks,” and they’re not selling jackhammers, that would have been false commercial speech and could have been regulated as such.

Aaron Reese: Bob was named by Best Lawyers in America as Washington DC’s 2017, 2019, and 2021 lawyer of the year in First Amendment law, and in 2022, he was listed in Washingtonian Magazine’s top lawyers Hall of Fame for lifetime achievement, and if anyone knows more about First Amendment law, I haven’t met them.

Bob Corn-Revere: One of the things to remember is, I’ve been practicing First Amendment Law for, going on 40 years. During that time, I’ve dealt with almost every kind of First Amendment issue. And among them have been cases involving commercial speech. For many years, at my firm, one of my clients was the Association of National Advertisers, and so, we handled a number of matters for them, including FCC proceedings that involved some of the commercial speech regulations involving children’s television and so on.

There were other cases involving other trade associations, involving restrictions on things like telemarketing, on labeling for various kinds of products, and so on. So, there have been a range of commercial speech issues over the years that have been part of my First Amendment practice.

Eugene Volokh: Commercial advertising, the Supreme Court has held, can be more restricted than other kinds of speech.

Aaron Reese: This is Eugene Volokh. He’s also been featured several times as a guest on So to Speak.

Eugene Volokh: I’m a professor at UCLA School of Law, and I’m also a visiting fellow of the Hoover Institution at Stanford, specialize in First Amendment law and have been doing that for over 30 years now.

Aaron Reese: So, because commercial speech is inherently different and involves encouraging people to spend their money, it can be regulated differently. Back to Eugene.

Eugene Volokh: Much of that has to do with a concern of protecting potential customers from being misled by a commercial ad in a way that the law doesn’t protect people from being misled by, say, a political ad. Again, there’s more going on there, but that’s the heart of the matter.

Aaron Reese: So, is advertising speech? The answer to that helps us understand how the government can step in.

Eugene Volokh: It’s true that an actual contract, maybe an actual offer and acceptance which formed the contract, are generally viewed as regulable conduct. They usually are done through communication, but the entry into a contract is seen as legally significant conduct which is subject to regulation. So, for example, a law can ban certain kinds of contracts altogether, antitrust law or a variety of other rubrics, but commercial advertising often does not involve the creation of a contract.

Maybe aimed at a future contract, but the general rule in contract law is, an ad is usually not, itself, an offer. An ad might be, “Oh, here is a product you could buy if you wanted to, and here’s what’s great about it. Here’s why you should buy it.” And then, somebody goes to the store or goes to Amazon.com and actually enters into the transaction, but the advertising is preliminary to the transaction and is viewed as speech rather than regulable conduct.

Aaron Reese: Back to Justin Pearson.

Justin Pearson: I think what’s really interesting, if you go back and read the documents from the founding and what the framers said and what the ratifiers said, they actually, in many cases, equated commercial speech with freedom of the press. It’s actually interesting, you know, when you think about newspapers in our generation, or 20th century newspapers, they’re very different from what they looked like back during the founding.

During the founding, most newspapers consisted entirely of advertising, and even the ones that had some political speech and some political news would still have far more advertising than political speech. And so, the founders, like Ben Franklin, would talk about how it’s important to have a free press to help out mercantile affairs.

They keep using this word, mercantile, that would keep popping up, and to help out commerce, and that, they actually equated the two. It’s also why one of the most famous defenses of a free press was actually something written about commercial speech, and I’m referring to Ben Franklin’s Apology for Printers.

And what happened there was, Ben Franklin, in one of his newspapers, one of his flyers, had printed an advertisement for a seafaring boat that wanted to hire sailors, and the ad said that, and I’m going to not use the same terminology, but basically, what it said is that clergymen need not apply.

And so, people got really offended, particularly the local clergy, but other people got really offended, and they demanded that Ben Franklin apologize. And so, he wrote his Apology for Printers, but the word “apology” was kind of sarcastic. It was not an apology, and instead, he explained that it’s important to have a free press and that whenever you have a free press, sometimes people are going to be offended, and that’s okay.

But what people often overlook is that speech that he was defending was a commercial advertisement in a newspaper. And that’s really how the framers saw commercial speech. They didn’t use the word “commercial speech,” but they really valued the press, and they cared about political speech as well, don’t get me wrong, but one of the things they kept harping on was how important a free press was to mercantile affairs.

Recording: Without freedom of thought, there can be no such thing as wisdom, and no such thing as public liberty without freedom of speech.

Aaron Reese: Benjamin Franklin controlled or owned many of the newspapers in the colonies, from New England all the way down through the Caribbean. He was very much in a position to regulate or censor people’s speech if he wanted to, like the monarchy in England did with the printing presses.

Recording: Whoever would overthrow the liberty of the nation must begin by subduing the freeness of speech.

Justin Pearson: It’s true, right? If he had kind of a different philosophy or a different worldview, he could’ve taken a very different approach, but he was very pro free speech, very pro free press, and very pro business. He loved people who were frugal and hardworking and entrepreneurial, and to him, these were all kind of tied together. And he wasn’t unique in that regard.

That was kind of a common theme among the founding generation, and so, the idea that, you know, the original public meaning of the First Amendment or people who take a textbook approach, that somehow there’s any type of doctrinal support for treating commercial speech different than other speech – it’s just not defensible from a doctrinal standpoint.

Aaron Reese: It would be over a century before First Amendment doctrine and commercial speech doctrine would begin to develop, but during this time, government officials still found ways to regulate it.

Bob Corn-Revere: The regulation of commercial speech goes way back.

Aaron Reese: In 2021, Bob Corn-Revere released the book, The Mind of the Censor and the Eye of the Beholder. In it, he covers early examples of businesses being told to change their ads in the United States in the 19th and 20th centuries.

Bob Corn-Revere: There was a case, probably around 1910 or 1915, involving the regulation or the penalizing the brewer of beer because he had an American Flag on his beer bottle label. And so, the state of Nebraska prosecuted the brewer for misusing the flag. That was one of the earlier cases of commercial speech regulation, and at the time, because there wasn’t a protection for commercial speech, this regulation was upheld.

Aaron Reese: And, unsurprisingly, Bob also covers several examples of Anthony Comstock, the New York anti-vice crusader, who used his extensive censorship law, the Comstock Act, to ban certain advertisements because he considered them to be obscene, lewd, or lascivious.

Bob Corn-Revere: Anthony Comstock was a full service censor. He censored all kinds of things, including advertisements for museums and art galleries. He was once seen on the New York subway putting patches over a poster advertising an exhibit at the Metropolitan Museum of Art.

Aaron Reese: Comstock and his crusade against obscenity in the late 19th and early 20th centuries covered up or destroyed advertisements and artworks he considered indecent. The example Bob just mentioned is commonly cited, though possibly apocryphal, and it involved Comstock objecting to an advertisement in the subway for a play or a product that showed a woman in a revealing outfit. He reportedly insisted it be taken down or covered up with brown paper.

Bob Corn-Revere: And so, he really didn’t discriminate.

Aaron Reese: Over 150 years after the First Amendment was ratified in 1791, it remained unclear how commercial speech could be regulated. The first time the Supreme Court considered whether commercial speech was explicitly protected or unprotected was 1942. Justin Pearson.

Justin Pearson: Before the 14th Amendment’s ratification, the primary protection that people had against their state and local governments was their state constitution, and most state constitutions had prohibitions on speech. They had protections for speech, just like the federal Constitution did in the First Amendment, and then what happened was, you know, the 14th Amendment was ratified in the late 19th century, and the First Amendment was incorporated through that.

And so, now you can apply the First Amendment not just against the federal government, but also in state and local governments. So, this led us to basically what happened in the late ‘30s and early 1940s, right? And so, there was a big fight between FDR and the court in the late 1930s, and you could have a whole discussion over whether the Supreme Court precedent changed because of that fight or because of some other reason, but the precedent changed, right?

And the precedent shifted in a way where the court started treating some rights as more equal than others. Now, for fans of free speech, it wasn’t all bad news, right? Because free speech was one of the rights that the court cared about and treated as fundamental, whereas things like economic liberty and property rights, the court didn’t care as much about, and they got a lower level of review. And so, this begged the question, well, what about speech proposing commercial transactions? And the court answered that question in 1942, in a case named Valentine v. Chrestensen.

Aaron Reese: Here are the facts of the Valentine v. Chrestensen case. Francis J. Chrestensen, a retired Navy captain, bought a decommissioned submarine from Boston Metal and the Iron Salvage Company for $25,000.00, around $400,000.00 in today’s money. Chrestensen docked the boat in the East River in New York City, and he wanted people to come visit the boat and tour the inside.

To let people know about it, he created a handbill that showed a picture of the boat, a map to get there, and text across the top that read, “See the two million dollar fighting monster. Go deep inside the former US Navy submarine, S49.” It advertised adult tickets for 25¢ and children’s tickets for 15¢. Chrestensen decided to pass his handbills out in the streets of New York City, but he was stopped by the police commissioner, Lewis J. Valentine, who told him that passing out ads on the streets was illegal, and cited a sanitary code law.

So, Chrestensen stopped, but then tried again by printing his handbills double-sided. On one side, he printed a protest against the city dock department, and on the other side, he printed the ad again, but made a few changes to it. He tried again, passing this version out on the streets, but he was restrained by the police. So, Chrestensen sued under the 14th Amendment. The case worked its way through the courts and the Second Circuit Court of Appeals agreed with Chrestensen, but Valentine petitioned the Supreme Court. The case was heard, and ultimately, Chrestensen lost. Eugene Volokh.

Eugene Volokh: Remember, that was pretty early on in the court’s dealing with free speech and using free speech law to restrict government action.

Justin Pearson: In a very short opinion, US Supreme Court said, “Speech proposing a commercial transaction is really conduct, not speech. It doesn’t get any protection from the First Amendment.”

Eugene Volokh: And the court said, “Look, pure commercial advertising, that’s just constitutionally unprotected.” It’s an exception to protection, kind of like libel it had viewed as an exception, or obscenity it had viewed as an exception.

Aaron Reese: Back to Bob Corn-Revere.

Bob Corn-Revere: As First Amendment law developed through the 20th century, there were a number of categories of speech that through the process of judicial development were said to be unprotected categories of speech, and they included things like obscenity, incitement, defamation, speech integral to criminal activity, and for the longest time, commercial speech was not considered to be a category of protected speech. It was excluded from traditional First Amendment protections.

Aaron Reese: Decades passed, and the decision in Chrestensen stood. Justice Owen J. Roberts wrote in the Valentine v. Chrestensen opinion, “The Constitution imposes no restraint on government as respects purely commercial advertising.” The court didn’t make any attempt to explain why commercial speech was excluded by the First Amendment, despite the early colonial history Justin Pearson mentioned, even though the 14th Amendment should have given it some protection under the law, but a change was coming. Eventually, the Supreme Court started thinking again about how it viewed commercial speech doctrine.

Eugene Volokh: In 1975, the Supreme Court signaled that it was prepared to provide a good deal of protection to commercial speech. That happened in a somewhat peculiar case, Bigelow v. Virginia, which involved a restriction on advertising for abortions. Recall, the Supreme Court had just held in Roe v. Wade that there was a constitutional right to abortion.

Recording: Good evening. In a landmark ruling, the Supreme Court today legalized abortions.

Eugene Volokh: You might imagine it saying, “Well, the right to abortion also includes the right to information about abortions and therefore the right to advertise abortions.” But the court went more broadly than that. The court decided more broadly than that. It said, “Well, commercial advertising is, notwithstanding this 1942 Valentine precedent, commercial advertising is somewhat constitutionally protected. And this ban on abortion advertising is therefore unconstitutional.”

And then, the next year, in Virginia Pharmacy Board v. Virginia Consumers Council, the Supreme Court said, “Well, more broadly, commercial advertising is constitutionally protected, even if you set aside the presence of some other constitutional right like the right to abortion.” So, in Virginia Pharmacy Board, the court struck down a restriction on advertising of prices for pharmaceutical products and said, “Generally speaking, commercial advertising is protected.” Not fully protected, somewhat less protected.

Bob Corn-Revere: But in developing that area of law, the court said that the interest in protecting commercial speech, while important under the First Amendment, are not quite the same as other kinds of speech like political speech, because, for example, false commercial speech could be seen as a form of fraud, if you are saying, telling someone, “The ingredients in this bottle are motor oil,” and in fact, it’s water, then you are lying to get someone’s money, which is a form of fraud, and therefore, is not protected.

Eugene Volokh: So, it occupies this intermediate zone within First Amendment law, between the speech that is fully protected and the speech that’s unprotected, like libel, obscenity, fighting words, and such.

Bob Corn-Revere: The court developed a different level of protection. It applies what we call intermediate scrutiny to the protection of commercial speech, rather than strict scrutiny in the political or other context. And as a result, the government doesn’t have quite as high a threshold to get past in order to justify regulations of commercial speech.

Aaron Reese: How can we think about commercial speech doctrine in simple terms? Back to Eugene Volokh.

Eugene Volokh: Well, so, one might think of the commercial speech doctrine as actually two doctrines, at least two. It’s articulated as one doctrine, but it might be helpful to think about two. One has to do with false or misleading commercial advertising, and that, generally speaking, can indeed be restricted and prohibited.

Aaron Reese: This is the easiest to understand category. It makes sense to almost everyone that the government can regulate false advertising.

Eugene Volokh: In some situations, the government can say, “Well, this ad may not be actually misleading, but it’s potentially misleading.”

Aaron Reese: And there are times when the government can require a business to say something, an example of compelled speech. And these regulations are done for the purpose of protecting the consumer from being misled.

Eugene Volokh: And if it’s potentially misleading, well, then, we can require a disclaimer, and indeed, various kinds of disclaimers have been required for various kinds of ads for professionals. To make sure that people, for example, realize that when they’re hiring a lawyer in contingency, they may not have to pay the lawyer’s fees, but may have to pay costs of litigation. Well, that’s something that might be required to be stated in an ad.

Justin Pearson: And there’s a famous US Supreme Court case about that as well, a case from 1985.

Aaron Reese: Justin Pearson.

Justin Pearson: Named Zauderer. And that was going on there was, there was an attorney who was advertising that if you lost your case, you didn’t have to pay any legal fees. What he was leaving out was that you’d have to pay court costs. And so, the state bar and the powers that be in Ohio said, “Okay, you have to fix your advertisement and point out that they’d still have to pay the court costs.”

And he said, “Well, no. What I said was technically accurate. In the legal world, fees are different from costs, and I said, ‘You don’t have to pay your fees.’ That’s accurate. I don’t want to have to change my advertisement.” And it goes up to the US Supreme Court, and the US Supreme Court said, “No.” Context was what matters. It doesn’t matter if this term is true in the abstract. The way you’re using it will mislead a reasonable consumer.

Most consumers are not lawyers, right? When they hear that you don’t have to pay any fees, they don’t understand that fees are treated as something different than costs in the legal community. They’re going to think it means you don’t have to pay anything. It’s misleading. It’s inherently misleading. The government could ban that speech if it wanted to. Here, the government’s just saying, “Supplement it and that’s also okay.”

And so, it works both ways. I always, as much as I love to sue the government, I always want to be fair to my friends who work for the government. The fact that facts matter, that can work in both directions.

Eugene Volokh: There’s another, much more controversial zone of commercial speech doctrine, and that has to do with restrictions even on non-misleading speech, even on speech that’s not misleading, not false, doesn’t propose any illegal transactions. At times, the court has said, “Well, there, if you’ve got a good enough reason to restrict the speech, well, that’s okay, so long as it’s a narrow enough restriction.”

So, in a case called Central Hudson in 1980, the Supreme Court said, “Well, if you want to restrict advertising that encourages the use of electricity in order to minimize energy use, if that’s your policy goal, you can restrict that kind of advertising, so long as you limit the restriction to ads that actually do encourage the use of more energy.”

On the other hand, at other times, in other cases, the courts said, “No, no, no. That kind of paternalistic rationale, that kind of argument that you want to restrict speech because it may be too persuasive to people, well, that’s just as unacceptable in commercial advertising as it is for other kinds of speech.” So, that’s the really controversial facet of commercial speech doctrine.

Aaron Reese: This one came as a surprise to me. There’s an old adage that truth is the ultimate defense, so, how can the government justify regulating commercial speech differently than other forms of speech?

Eugene Volokh: One rationale that the court has given is that commercial speech is more hardy, less resistant to chilling than other speech, because after all, commercial advertising is very valuable to the advertisers.

Aaron Reese: By “chilling,” Eugene is referring to when companies or people refrain from speaking because they fear negative consequences, like fines or lawsuits. But advertising is so valuable to a company they’ll continue to speak about their products even if there are some speech regulations.

Eugene Volokh: So, to the extent one worries about chilling effects from, say, restrictions on false statements in newspaper articles and the like, one should worry less about chilling effects on false advertising, or rather, the worry about chilling effects is if you ban the false, let’s say, you’re also going to deter some statements that are true, because some people are going to be afraid that maybe they’ll get it wrong or maybe the jury in the future will conclude that they got it wrong. Well, that kind of chilling is a lot less likely for commercial advertising.

A second rationale that it’s given, the court has given, is that commercial advertising tends to be more verifiable by the speaker. The newspaper is writing about some person or even about some product, you may not know, really, all of the properties of that product, and they may make some mistakes about it.

But presumably, the advertiser that is promoting a product it is itself selling has a lot of information about that product, either because it developed the product or because it’s in a business partnership with those who developed the product. And therefore, we shouldn’t worry too much about requiring them to really tell the truth about it, because presumably, they would know what the truth is. No, these rationales only justify restrictions on false or misleading statements.

Aaron Reese: But how can the government regulate true statements in advertising?

Eugene Volokh: Well, what about restrictions on true statements? Why would there be any justification for that? And at times, the court has said, “Commercial advertising is just less valuable to public debate.” It’s something that’s important enough to people. In fact, sometimes, they may care a lot about where they can buy some lower-priced product, let’s say, or about the features of some product that may be convenient to them.

But it’s less central to the things we really care about when it comes to free speech, such as democratic self-government or the search for truth about politics or science or art or religion, or even self-expression. It’s an interesting question whether that’s right. I mean, often, commercial advertising does touch on things that have political relevance. Even prices, of course, as we know, people’s concerns about inflation, even prices are important.

Often, a commercial ad may incorporate certain kinds of political statements, like, “Buy American,” or, “Buy from this company because it’s green,” or whatever else. So, that may be relevant to political debates that way, and when it comes to self-expression, you know, a lot of advertisers, especially when they are sole proprietors, may actually feel very strongly about the things they’re saying. So, these are all quite controversial, and Justice Thomas, for example, has generally spoken out against lower protection for true commercial speech.

Think when it comes to false and misleading commercial speech, he seems to be onboard, but nonetheless, there at least seems to have been a good deal of support, including in precedents signed onto by a majority of the justices for the preposition that commercial speech is not quite as valuable as – doesn’t deserve as much protection as other kinds of speech do.

Aaron Reese: The government has been known to abuse commercial speech laws. To really understand how the government regulates commercial speech, it helps to have a recent, specific case, and one great example comes from Justin Pearson. My initial conversation with Justin in Memphis is what jumpstarted this whole episode. I mentioned to him that I’d interned at the Institute for Justice, where he works, after college, and we talked about the cases that IJ was litigating while I was there. He told me about his lawsuits, notably among them, how a few years back, he fought for the rights of a small creamery owner selling milk out of her home.

Justin Pearson: Basically, this involved a client of mine named Mary Lou Wesselhoeft and her business, Ocheesee Creamery. And Mary Lou is just a wonderful person. Her farm that she owns with her husband is located in the Florida Panhandle, a little west of Tallahassee, and you know, Ocheesee Creamery is located right there on the farm. They have three employees, and they have the cows right there next to the creamery. It’s like something out of a storybook, and they do everything the right way.

It’s all natural, all organic, all just perfect. And so, people come from far away to buy additive-free dairy products from Mary Lou instead of going to their local grocery store, and that’s why they seek her out. That’s like, her big selling point, which is her sincere food philosophy that you shouldn’t inject anything artificial into these dairy products. And so, you know, they pasteurize the milk, but that just means they heat it up.

They don’t add anything. And so, they sell pasteurized whole milk, they skim the cream off, they sell pasteurized cream, they’re left with skim milk, they sell pasteurized pure skim milk. And so, one day, the state of Florida employees come to Mary Lou and say, “Mary Lou, there’s a problem with your skim milk.” She goes, “How could that be? I never have any problems. I do everything the right way.”

And they say, “No, you have to stop calling it skim milk, because it’s too pure.” And so, that’s because Florida had – and I wish she were here, because Mary Lou has this thick Southern accent, and she says, “When they told me that, I thought they had bumped their heads.” Anyway, what happened was, during that period between Valentine and Virginia State Board of Pharmacy, when the US Supreme Court wasn’t protecting commercial speech, there were all of these federal regulations that were often written by giant trade associations to hurt small businesses.

But anyway, one of the types of regulations was something called a food standard of identity. So, basically, it was a federal government definition for what could be called what. And so, the federal food standard of identity for skim milk said that skim milk had three ingredients. The first ingredient was skim milk, which should tell you everything you need to know right there, that there are other ingredients.

The other two ingredients were artificial vitamin additives, and if you wanted to sell skim milk without the additives, you were allowed to. You just couldn’t call it skim milk. You had to call it imitation skim milk. And so, Florida had copied and pasted the federal regulations. Ocheesee Creamery’s a very small creamery. They didn’t sell across state lines, so she was only really dealing with Florida, but because they had copied these same federal regulations, she was violating the Florida regulations.

And so, she actually went around and talked to lawyers in Tallahassee, and they pointed out that these food standards of identity have been on the books since the mid-20th century. No one’s ever won a First Amendment challenge against them, and they literally told her, “You’re not going to be the first.”

Bob Corn-Revere: It had to be called an “imitation milk product” because it didn’t have Vitamin A, which would have required Ocheesee Creamy to have Vitamin A, to inject artificial ingredients back into the milk so it can no longer say that it was a natural milk product.

Aaron Reese: What was it again? Imitation milk product?

Bob Corn-Revere: Imitation milk product.

Aaron Reese: Who doesn’t want to have that on their cereal?

Bob Corn-Revere: Of course. I have a big glass of imitation milk product every morning.

Justin Pearson: And so, eventually, she found our website, and we ended up taking her case, and I had the honor of arguing it. And what we realized is that all that bad precedent that the lawyers in Tallahassee were talking to her about, that was all created during those 34 years where the Supreme Court wasn’t protecting commercial speech. But we are now living in a post-1976 world, right? A post Virginia State Board of Pharmacy world, where the analysis is different, and we knew that under the current test, many of those laws might be unconstitutional.

And so, we agreed to take the case. It was not a slam dunk. Anytime you go into court and you’re candid with the judge, like you’re required to be, and I always am, you say, “Your Honor, just so you know, no one’s ever won this type of challenge before,” it’s going to give many judges pause, and we actually lost in the trial court.

But thankfully, we went up on appeal, and I had the honor of arguing again, and there we won three-nothing, and the court explained that although the government’s free to create its own definitions for its own use, it can’t impose those definitions on the rest of society in a way that bans you from saying something that is honest, that is not misleading.

And what matters when determining whether something is misleading or not is the public understanding of that term, and based on the public understanding of that term, Mary Lou was not saying anything misleading, which meant that it could not be banned, and if the government really thought that there was some potential confusion going on over the vitamin content or something, the solution to that type of concern is more speech, not less speech.

And by the way, Mary Lou had offered, because she’s very proud of her products, she had offered all sorts of labels with additional information addressing all the government’s concerns, and the 11th Circuit, the federal appellate court, basically told the government, “You should have accepted one of those offers.”

A couple other things I want to mention about that case, if you don’t mind, one thing is, sometimes I give talks about this case at law schools, because it was the first case to ever win, the first First Amendment challenge to win against a federal food definition, and I’ll point out to the students, when we were up on appeal in federal appellate court, the International Dairy Foods Association filed an amicus brief. And the students will say, “Oh, isn’t that great? They came in to help out little Mary Lou in the Florida Panhandle.” No. That is the opposite of what happened.

Aaron Reese: They were on the wrong side?

Justin Pearson: Absolutely. They were the ones behind the regulations to begin with.

Aaron Reese: Oh, no.

Justin Pearson: And they didn’t want little Mary Lou Wesselhoeft in the Florida Panhandle to destroy their handiwork without a fight. Yeah, and so, I think oftentimes, people have this misunderstanding that it’s government versus big business, when more often than not, it’s big business teaming up with the government to hurt small business. One other thing I want to mention is that sometimes, when you persuade a court to enact new precedent, it helps out people you never even anticipated, which I think is a beautiful thing.

I think far too often, in society today, people only care about the rights of their friends and not of their enemies, and they forget that the precedent you create for one will be used for the other one tomorrow, right? You have to be philosophically consistent. And so, one of the really cool things that happened was that precedent then became the building block for all of these court victories brought by vegan companies and plant-based food companies.

Aaron Reese: Interesting.

Justin Pearson: Right. And so, if you look, a few years ago, there was this wave of cases where states, at the behest of State Cattleman’s Associations, started banning terms like veggie burgers. That was actually one of my cases, and other terms, and my case ended up getting resolved quickly, but some of these other cases actually ended up getting rulings in the courts and going up on appeal, and they would find in favor of the vegan food companies like Tofurkey, and these cases would literally have a block quote from the Ocheesee Creamery decision, explaining that what matters is not the government definition.

What matters is the public understanding, whether you’re actually misleading people. And honestly, because courts like to move incrementally and not take huge leaps, I don’t know if those cases would have come out the same way but for the Ocheesee Creamery decision. That federal appellate decision on behalf of that dairy creamery was really a crucial stepping stone towards all those victories for the vegan food companies.

Mary Lou is completely indifferent towards vegan food. She’s not hostile towards it, but she just couldn’t care less. She was still selling cream, which meant she still had skim milk left over, but she refused to use the wrong label, but because she stood on principle, not only did she create precedent that helped her and helped other farmers, she created precedent that helped all sorts of other people, including vegan food companies, of all people.

Bob Corn-Revere: It’s one of the crazy ways in which regulation can warp reality in the name of protecting consumers and in the name of making sure they know what they’re buying, state law was forcing this dairy to essentially lie about what its product was. And so, the courts looked at that and said, “No, this is a regulation of commercial speech that is not serving the state’s interest. It’s not narrowly tailored.” As a consequence, it was determined to be unconstitutional.

Justin Pearson: Just from a practical standpoint, commercial speech is really important, and it tends to be most important for small business owners, right? Who doesn’t like small business owners? By definition, small business owners don’t have the same giant advertising budgets that giant companies have. So, if you make Budweiser put something on its label, they can deal with that through their commercials or what have you.

But when the state of Florida messes with Mary Lou’s skim milk label, all of a sudden now, she’s literally pouring her skim milk down the drain. The big fight we’re having right now is over how you decide whether something is truthful, right? Because as I said before, the rule of thumb for commercial speech now is if it’s legal to sell something, then it’s legal to honestly talk about it. And so, that then leads to this question, “Well, when are you honestly talking about something? Who gets to decide that?”

And one of the things that I think is wonderful about the First Amendment, even when it comes to commercial speech, is the court really cares about what’s actually going on in the real world. And so, they really look at how the speech is being spoken in context. And so, that leads me to one of my favorite cases ever, because it really explains how context is important when it comes to commercial speech.

And it’s actually a Fifth Circuit case, not a Supreme Court case, but I love this case. It was a few years ago, a case out of Mississippi called Oil Express, and it’s about the term “tire engineers.” And so, basically, what was going on there was you had this chain of small oil and tire change places that were calling their employees tire engineers. And the Mississippi Engineering Board didn’t like that, because they didn’t have advanced math degrees.

And so, this led to litigation over whether it was misleading to call oil change and tire change people “tire engineers.” And the Mississippi Engineering Board pointed to these surveys that asked survey respondents what the term “engineer” meant, and of course, they said, “People with advanced math and science and engineering degrees,” and all this stuff. And they said, “That means that the way that these oil change places are using this term is misleading, which means it can be banned.”

And the Fifth Circuit said, “No, that’s not how this works. It doesn’t matter what that term would mean in the abstract by itself. What matters is how that term is being used in context, because what matters is whether the customers are actually being misled.” And so, with their actual analysis is whether when someone goes to this little oil change place, whether they think the person they’re talking to has an advanced degree in physics, and they don’t. Or whether they’re on the oil change website, whether they’re being misled by that, and they’re not. And so, they ruled for the oil change place. It’s because context is crucial in this analysis.

Aaron Reese: Importantly, one more area where commercial speech differs from non-commercial speech is in the right of publicity. Eugene Volokh explains.

Eugene Volokh: There is a legal doctrine called the right of publicity, which basically allows people to control the commercial use of their name and likeness. Now, of course, that has to be limited by the First Amendment, as newspapers are commercially distributed and they write about people all the time, even when those people do not want to be written about, and so, they use the person’s name, often use a photograph of that person to illustrate the story, and they must have the First Amendment right to do that. Likewise, you could have unauthorized biographies, film or books.

You could have movies, fiction films that refer to real people in obviously fictional contexts. But let’s say somebody wants to put out an ad with, here’s one example, the singer Tom Waits. They were using his voice in an ad for, I think, Frito-Lay chips.

Recording: New Salsa Rio Doritos!

Aaron Reese: Frito-Lay’s, who owns Doritos, asked Tom Waits in 1988 to do a commercial for them. Waits was known, though, for being outspoken against using his voice to sell products. He declined. Here’s Tom Waits on NPR.

Recording: I’d rather have a hot lead enema. I hate them. I saw a commercial for toilet paper, and they were using “Let the Good Times Roll,” you know? It’s like, “Man, don’t do that.”

Aaron Reese: But Frito-Lay’s decided to move forward anyway, and they hired a musician whose gravelly voice sounded a lot like Tom Waits.

Recording: Yeah, tickle your taste, you try ‘em, buy ‘em, get ‘em, got ‘em, everybody go up and go to Rio, Salsa Rio, everybody!

Recording: Taste of the tangy tomatoes.

Aaron Reese: And they wrote a song for the commercial that sounded a lot like the Tom Waits song from 1976, “Step Right Up.”

Recording: Everyone’s a winner, bargains galore! That’s right, you too can be the proud owner of the quality…

Aaron Reese: Later that year, Tom Waits heard the Doritos commercial on the radio, and after hearing it, he sued, arguing voice misappropriation and false endorsement.

Eugene Volokh: And the courts say, “Well, that’s a classic example of a right of publicity infringement.” Now, in some situations, it might be misleading to use somebody’s name, likeness, or voice in an ad, but let’s say it’s clear, “Celebrity voice impersonated.”

Says so right there on the ad, or let’s say if they use a person’s likeness, that they say, “Not endorsed by this person, we’re just giving, mentioning this person to draw attention, even though we stress he does not endorse it at all.” Well, in those situations, courts have generally said, “Well, this is commercial speech. This is commercial advertising. It’s less protected.” Why? Maybe it’s because it’s less valuable.

Aaron Reese: Tom Waits won the lawsuit in 1990. Frito-Lay was ordered to pay two and a half million dollars in damages.

Eugene Volokh: If it’s a matter of requiring a historian of modern American music, not to mention Tom Waits or not even to focus on Tom Waits, that’s a lot of burden on free speech. If it’s a matter of requiring Frito-Lay to either license his voice or use somebody else’s voice or something that doesn’t deliberately sound like Tom Waits’ voice, well, how much is really lost to public discourse?

Recording: New Salsa Rio Doritos!

Recording: Now that tongue tickler’s quite a tickler, it’s confounded, resounded, perplexing, complexing, convoluted, but it sure feels good, all right.

Recording: Tickle your taste of the tangy tomatoes.

Aaron Reese: Since I began recording interviews for this episode, there’s been plenty of coverage on the topic of commercial speech, from cases involving social media platforms to regulations on artificial intelligence. I want to thank all my guests in this episode, Justin Pearson, Eugene Volokh, and Bob Corn-Revere, for lending me their time and helping me understand how commercial speech is treated differently than non-commercial speech. I couldn’t have asked for better discussions. I asked Bob how we should be thinking about regulations on commercial speech going forward.

Bob Corn-Revere: Well, we’re actually forced to think about the relationship between commercial speech regulations and traditional areas of free speech protection, because states increasingly, and the federal government, to a certain extent, are moving to try and minimize what they have to prove to be able to regulate speech by calling their speech regulation a commercial speech regulation.

For example, when you have states trying to regulate the internet by either limiting minors’ access to social media or so on, they’re trying to justify those regulations by calling them commercial speech regulations, and thereby hoping to lower the burden of justification that they have to make in courts.

So, it is incumbent upon us, as defenders of freedom of expression, to be thoroughly familiar with the commercial speech precedents to show why this is not a regulation of commercial speech, it’s simply the state simply trying to redefine what it’s talking about. Another example of that is in commercial disclosures. There is an exception to the compelled speech doctrine.

Compelled speech means that the government can’t force people what to say, but in the commercial speech area, there’s a limited exception that says that you can require certain kinds of disclosures to prevent the speech from being misleading. Okay, so, what’s happening, however, is that we’re increasingly seeing governments trying to expand what they call these commercial disclosures and move into areas that don’t involve commercial speech.

The best example of that is coming up in the cases involving internet regulation, again, where social media platforms are being told they have to disclose their moderation policies and to disclose and create reports for what kinds of actions they take under those moderation policies.

Under no stretch of the imagination are those the kinds of limited commercial disclosures that you put in advertising to make sure they’re not deceptive, but it’s an area where, to try and maximize its power, governments at various levels are trying to redefine what they do to say that it’s commercial speech, and thereby try and basically pull a fast one in the courts.

And so, again, to be able to defend the First Amendment as we understand it, it’s really incumbent upon us to be thoroughly familiar with all of the precedents involving commercial speech and make sure that we maintain the strong standards for speech overall when we defend various areas.

Nico Perrino: That was Aaron Reese, featuring the Institute for Justice's Justin Pearson, Fires Bob Korn Revere, and UCLA and the Hoover Institution's Eugene Volokh. I'm Nico Perrino, and this podcast was recorded and edited by Aaron Reiss, with producing assistance from Sam Lee. To learn more about So To Speak, you can subscribe to our YouTube channel or Substack page, both of which feature video versions of this episode.

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