By Daniel E. Troy

Advertising dramatically affects what we moderns say, wear, do, and believe. After all, who among us has not moaned "I can't believe I ate the whole thing," asked "Where's the beef?" or (more recently) joked "I love you, man."

Advertising also fosters competitive markets. At the same time, it educates Americans about choices vital to their lives. In fact, Nobel prize-winning economist George Stigler said more than 30 years ago that "advertising is an immensely powerful instrument for the elimination of ignorance."

For a long time, however, the Supreme Court has treated the commercial messages in a newspaper or magazine differently than the rest of the publication's content, despite the fact that 70 percent of the typical newspaper's content is advertising. This approach is improper as a matter of history.

Rather, the historical evidence shows that as long as a commercial message is truthful and concerns a lawful product or service -- admittedly, key qualifications -- the government should not have any more power to restrict commercial messages than it does scientific, artistic, or political messages.

The strongest support for this view is the text of the First Amendment itself, which pro-vides that "Congress shall make no law ... abridging the freedom of speech, or of the press." Quite plainly, the text does not explicitly distinguish between advertisements and other types of messages.

This cannot end the inquiry, however -- a criminal conspiracy can also be characterized as "speech," yet we know that it is outside "the freedom of speech." The First Amendment must be understood in the context of the common law extant at the time of ratification.

Understanding that context requires that we look at the philosophical views of the generation of the Framers, the history surrounding advertisements, and any regulations in place at the time.

Let me begin with the evidence that the Framers would not have considered differentiating commercial speech from other forms of expression as a philosophical matter. The generation of the Framers did not distinguish between so-called civil and economic liberties, nor between commercial and noncommercial speech.

In 17th and 18th century England, there were two reigning justifications for free expression: the idea that free speech "was an instrument to some collective good," and the notion that free speech was a "natural property right of the individual."

This latter justification, Professor John McGinnis shows, "dramatically influenced the framing of the Constitution." In the Whig tradition, freedom of speech and property rights were seen as different parts of an individual's liberty.

James Madison's thinking exemplifies this point. Madison, who drafted the First Amendment, essentially regarded all rights, including the right of free speech, as a form of property right shielded from government interference.

Echoing John Locke and the libertarian and influential CATO's Letters, James Madison wrote: "In its larger and juster meaning, [property] embraces every thing to which a man may attach a value and have right; and which leaves to every one else the like advantage ... a man has a property in his opinions and the free communication of them...."

Madison explicitly equated liberty and property, stating that "as a man is said to have a right to his property, he may be equally said to have a property in his rights...." In Madison's view, the primary role of government was to guarantee these rights to the individual.

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Daniel E. Troy is a partner at Wiley, Rein & Fielding in Washington, where he specializes in constitutional and appellate litigation. He is also an associate scholar at the American Enterprise Institute.

This article is adapted from an address Mr. Troy presented to The Federalist Society in New York on April 28, 2000, at a conference on the future of commercial speech. Part 2 will appear in the fall issue of the Digest.

For a fuller treatment of advertising history, see Mr. Troy's article, "Advertising: Not 'Low Value' Speech," Yale Journal on Regulation, Vol. 16, No. 1, Winter 1999.