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Kozinski on ComSpeech: Scholar 'Hopeful' as He Turns Up Heat

By David L. Hudson, Jr.

If federal judge Alex Kozinski had his way, commercial speech would no longer be relegated to a "subordinate position in the scale of First Amendment values."

This judicial scholar on the U.S. Court of Appeals for the Ninth Circuit has exposed the fallacies of the commercial speech doctrine and persuasively argued for the U.S. Supreme Court to abandon the nonsensical distinction between commercial and noncommercial speech.

Kozinski says the impetus for his scholarly interest in commercial speech began several years ago when he chaired a panel on commercial speech sponsored by the Federalist Society at Cornell University. "I found the subject interesting and really did not understand why commercial speech should be granted less protection," he said.

"I wrote my first piece on commercial speech because I felt that the U.S. Supreme Court had established a very mushy test [in Central Hudson and its progeny] and my position was diametrically antithetical to that of the Court."

In that "first piece" — the seminal 1990 law review article "Who's Afraid of Commercial Speech" — Kozinski, along with his former law clerk and now law professor Stuart Banner, debunked the arguments for affording commercial speech a lower level of protection.

Describing the commercial speech doctrine as "the stepchild of First Amendment jurisprudence," Kozinski warned that the doctrine "gives government a powerful weapon to suppress or control speech by classifying it as merely commercial" and that "today's protected expression may become tomorrow's commercial speech."

Kozinski and Banner collaborated on another piece, "The Anti-History and Pre-History of Commercial Speech," published in 1993. In this article, Kozinski examined why the U.S. Supreme Court crafted what later became known as the commercial speech doctrine in the 1942 case Valentine v. Chrestensen.

In Valentine the U.S. Supreme Court ruled that F.J. Chrestensen could not distribute handbills advertising his submarine, which he exhibited for profit. The Court ‹ without citing a single case ‹ ruled that it was "equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising."

The Court issued its decision in Valentine only 13 days after oral argument and without citing any legal authority. The Court reached its opinion so easily, Kozinski argued, because "the Court conceptualized advertising as a business, not as a means of expression."

Kozinski's belief in commercial speech rights surfaces in more than his scholarship. In one 1993 case, White v. Samsung Electronics America, Inc., Kozinski wrote a dissenting opinion that emphasized the importance of commercial speech as "a significant, valuable part of our national discourse" and noted the problem of defining it:

Photo of Judge Kozinski
Judge Alex Kozinski: Breaking new
ground on commercial speech.

"In our pop culture, where salesmanship must be entertaining and entertainment must sell, the line between the commercial and noncommercial has not merely blurred; it has disappeared."

Nevertheless, Kozinski's greatest contribution to First Amendment jurisprudence has been his unabashed advocacy for commercial speech in his scholarly articles.

For several years, the influence of Kozinskiąs criticism of the commercial speech doctrine seemed confined to academic circles. Recently, however, his articles appear to have created a healthy amount of judicial skepticism toward the doctrine.

Most notably, Justice Clarence Thomas cited Kozinski's "Who's Afraid of Commercial Speech?" in two footnotes in his concurring opinion in 44 Liquormart. In that historic opinion, Thomas concluded: "I do not see a philosophical or historical basis for asserting that Ścommercial" speech is of Ślower value" than Śnoncommercial" speech."

Interestingly, Justice Stevens, author of the Court's principal opinion in 44 Liquormart, cited Kozinski's other piece, "The Anti-History and Pre-History of Commercial Speech."

The judicial skepticism threatening the commercial speech doctrine has not been confined to the nation's highest court. Earlier this year, three of Kozinski's colleagues on the Ninth Circuit cited his article in United Reporting Publishing Corp. v. California Highway Patrol, writing: "The current debate centers not on whether commercial speech is a form of expression entitled to constitutional protection, but on the validity of the distinction between commercial and noncommercial speech."

For his part Kozinski regards the latest development with guarded realism. "I do see legal writers and different courts citing the articles on commercial speech and there does appear to be some movement toward changing the law in this area," he said. "However, I think it would be a little optimistic to say that the law will soon change, though it is a hopeful sign that courts are beginning to notice some of the problems with the commercial speech doctrine."

First Amendment advocates hope the U.S. Supreme Court will soon recognize, as Judge Kozinski has artfully shown, the problems with the commercial speech doctrine and will no longer relegate such speech to a "subordinate position."

David L. Hudson, Jr. is a research attorney at The Freedom Forum First Amendment Center in Nashville.

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980).

Alex Kozinski & Stuart Banner, Who's Afraid of Commercial Speech?, 76 Va. L. Rev. 627 (1990).

Alex Kozinski & Stuart Banner, The Anti-History and Pre-History of Commercial Speech, 71 Tx. L. Rev. 747 (1993).

Valentine v. Chrestensen, 316 U.S. 52 (1942).

White v. Samsung Electronics America, Inc., 989 F.2d 1512 (9th Cir. 1993)( Kozinski, J., dissenting in re court's refusal of en banc rehearing).

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).

United Reporting Publishing Co. v. California Highway Patrol, 146 F.3d 1133 (9th Cir. 1998).