Justice Thomas Emerges as Court's Champion of Commercial Speech
By David L. Hudson, Jr.
 He was the subject of public ridicule for the Anita Hill controversy during his confirmation hearings. A book about his
selection as a U.S. Supreme Court Justice is entitled Strange Justice. His views on affirmative
action and civil rights have caused critics to dub him "Uncle Thomas."
He has also been criticized for nearly always aligning himself with conservative Justice
Antonin Scalia and for his reticence on the bench during oral arguments. Such is the plight
of Clarence Thomas, a man who arose out of abject poverty in Pin Point, Georgia, and
ascended to the United States Supreme Court.
No matter how one might agree or disagree with certain of his political and social views,
however, Justice Thomas has arguably emerged as the Court's foremost protector of
commercial speech.
Until 21 years ago, commercial speech was denied constitutional protection. In First
Amendment jurisprudence, other types of "noncommercial speech" (like political speech)
are still considered more worthy than advertising in the marketplace of ideas.
For many legal scholars, however, a problem exists in delineating the boundaries between
commercial and noncommercial speech. For example, some commercial advertisements also
make political or social statements, while others (especially avant-garde TV ads) hardly seem
to be proposing commercial transactions at all.
Nevertheless, the Court has maintained the distinction despite the definitional problems --
and despite the larger argument that all "speech is speech."
In its historic Virginia Pharmacy decision in 1976, the Court formally repudiated the
principle that commercial speech deserves no First Amendment protection when it invalidated
a Virginia law banning the advertisement of pharmaceutical prices.
The Court recognized that a "particular consumer's interest in the free flow of
commercial information...may be as keen, if not keener by far, than his interest in the day's
most urgent political debate." The Court not only emphasized the public's right to receive
commercial messages, but also stressed the interests of advertisers and society generally in the
free flow of commercial information.
Virginia Pharmacy represents the high water mark of commercial speech protection.
Rejecting Virginia's "highly paternalistic approach" of suppressing information for the
public's own good, the Court concluded that "people will perceive their own best interests if
only they are well enough informed, and that the best means to that end is to open the
channels of communication rather than to close them."
However, shortly after Virginia Pharmacy, the Court relegated commercial speech to a
"subordinate position in the scale of First Amendment values" as opposed to noncommercial
speech. In its Central Hudson decision of 1980 the Court established a four-part balancing
test that provided less constitutional protection for commercial speech than did the promising
Virginia Pharmacy.
Under Central Hudson, restrictions on commercial speech have to meet a less burdensome
standard: (1) The speech must concern lawful activity and not be misleading; (2) the asserted
governmental interest must be substantial; (3) the regulation must directly and materially
advance the governmental interest; and (4) the regulation must be no more extensive than
necessary to serve that interest.
Justice Thomas first assumed a prominent role in commercial speech jurisprudence when
he authored the Court's unanimous 1995 decision in Rubin v. Coors Brewing Co. In Rubin
the Court struck down the portion of the Federal Alcohol Administration Act (FAAA) that
prohibited the display of alcoholic content on beer labels.
In this case Thomas used an exacting Central Hudson analysis to scrutinize the
government's interests in preventing "strength wars" among brewers and in facilitating state
enforcement. Thomas acknowledged the "strength wars" interest, but said the labeling ban
did not directly advance that interest and was more extensive than necessary.
By the following year, however, Justice Thomas had come to embrace the
uncompromising vision of Virginia Pharmacy over the formulaic Central Hudson balancing
test. In 44 Liquormart v. Rhode Island, Thomas called for a fundamental revision of the
Court's approach to commercial speech.
The 44 Liquormart Court had to determine whether a Rhode Island restriction on alcohol
price advertising designed to curb consumption violated commercial speech rights. The
Court unanimously invalidated the law, causing one First Amendment commentator to the
refer to the Court as "a fierce defender of free speech."
The fiercest defender, however, was unmistakably the much-maligned Justice Thomas.
While the other Justices invalidated the state law under the Central Hudson test (for reasons
similar to those in Rubin), Thomas boldly articulated a vision of commercial speech better in
line with the Virginia Pharmacy understanding of the First Amendment: protection for
commercial and noncommercial speech alike.
Unlike the Justices who strongly reaffirmed Central Hudson, Thomas articulated an
analysis that ran much deeper and purer for commercial speech proponents. Instead of
reinvigorating Central Hudson, Thomas embarked on a much grander course: the
elimination of the Court's distinction between commercial and noncommercial speech.
Decrying the Court's "sudden turn" away from Virginia Pharmacy in Central Hudson,
Thomas concluded:
"I do not see a philosophical or historical basis for asserting that 'commercial' speech is
of 'lower value' than 'noncommercial' speech. Indeed, some historical materials suggest to
the contrary. ... Nor do I believe that the only explanations that the Court has ever advanced
for treating 'commercial' speech differently from other speech can justify restricting
'commercial' speech in order to keep information from legal purchasers so as to thwart what
would otherwise be their choices in the marketplace."
Thomas reiterated his stance this past June in Glickman v. Wileman Bros. In this case, a
narrow 5-4 majority ruled that a mandatory generic advertising program, issued pursuant to
marketing orders under the regulatory framework of the Agricultural Marketing Act (AMA),
did not implicate the speech rights of fruit growers and handlers who were compelled to fund
generic ads against their wishes (see page 8).
Thomas viewed the matter squarely as compelled commercial speech. In dissent he wrote:
"I continue to disagree with the use of the balancing test and the discounted weight given to
commercial speech generally." He referred again to "the higher standard that should be
applied to all speech, whether commercial or not."
To Justice Thomas, balancing freedom of speech against other governmental interests
only encourages government to suppress information for the sake of manipulating consumer
behavior -- something anathema to the fundamental First Amendment principle that the
speaker and the audience, rather than the government, should assess the value of information.
Though critics may disagree with him on this issue and others, there can be no argument
on one point: Justice Clarence Thomas has truly become a champion of commercial speech
in the nation's marketplace of ideas.
David L. Hudson, Jr. is a research attorney at The Freedom Forum First Amendment Center in Nashville.
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