[Part 2 -- From the Revolution and Reconstruc-tion to modern times]

By Daniel E. Troy

T he battle to protect commercial speech played an important role in the American Revolution. Much of the opposition to the British Stamp Act of 1765 and the taxes it imposed on the press was based on the perceived offense to property rights, as well as to freedom of the press. The two were inextricably linked.

According to Arthur Schlesinger, Sr., the Stamp Act assessed an excessive 2-shilling tax on each advertisement. (The publisher himself received only from 3s. to 5s. per ad, less for repeated insertions.)

This tax galvanized the colonial press against the British government, leading one Anti-Federalist to note: “Stamp duties also, imposed on every commercial instrument of writing -- on literary productions, and, particularly, on newspapers, which of course, will be a great discouragement to trade; an obstruction to useful knowledge in arts, sciences, agricul-ture, and manufactures, and a prevention of political information throughout the states.“

Note the order -- trade first, political information last. The repeal of the Stamp Act of 1765 one year after it had been enacted is traditionally considered a powerful victory for an independent press and for advertising.

After the Revolution, and only five years after adopting a state constitution explicitly guaranteeing freedom of the press, Massachusetts enacted a similar stamp tax on all newspapers and almanacs, which was followed by a tax on newspaper advertisements. (Even then it was "Taxachussetts.")

These taxes were widely denounced as, in the words of printer Isaiah Thomas, an “unconstitutional restraint on the Liberty of the Press.” Repeal of the advertising tax in 1786 was also cited as a great victory for “freedom of the press.”

In Grosjean v. American Press Co., 297 U.S. 233, 248 (1936), the Supreme Court noted that “[t]he framers were likewise familiar with the then-recent Massachusetts episode; and ... that occurrence did much to bring about the adoption of the [First Amendment].”

The practice of state legislatures around the time the First Amendment was ratified is consistent with the view that advertising was protected unless it concerned the solicitation of unlawful activities or was fraudulent.

Along with some research assistants, I reviewed all of the state statutes regulating advertising at that time. We found that, although much trade regulation existed at the time of the framing, the only limitations on advertising were on the promotion of products, services, or activities that were themselves banned or unlawful.

For example, during the period surrounding ratification of the Bill of Rights, at least 10 states prohibited or restricted lotteries. Seven of those statutes barring or restricting lotteries specifically prohibited their advertising and promotion.

A handful of states prevented the advertising of other illegal activities. For example, Connecticut and Pennsylvania prohibited the staging -- and advertising -- of horse racing. And Rhode Island prohibited the erection of a sign “for the keeping of a public house” without first obtaining an inn-keeper's license. But I found no colonial example of “stand-alone” advertising regulation.

Although this evidence strongly suggests that advertising came within “the freedom of the press,” two key qualifications must be made to this statement. The First Amendment was adopted against the background of a venerable common law tradition prohibiting commercial misrepresentation. Thus, false or misleading commercial speech is clearly not entitled to First Amendment protection.

For similar reasons, advertisements of unlawful products must also be regarded as outside the scope of constitutional protection. Such a message is, in essence, an invitation to commit a crime. No evidence suggests that the First Amendment was ever understood as protecting such a communication.

Thus, the text, the Framers' world view, the historical experience, and the state legislation at the time all suggest that the generation of the Framers did not distinguish between commercial and noncommercial speech.