In 1731, Franklin printed a politically incorrect advertising notice for a ship's captain. The ad was not part of a newspaper; it was distributed as a standalone commercial handbill. The paper simply proposed a commercial transaction by seeking additional freight and passengers for the captain's ship. At the bottom of the ad was the note: "No Sea Hens nor Black Gowns will be admitted on any Terms."

This handbill outraged the local clergy (the "Black Gowns"), although it is unclear whether they were more offended by their exclusion from the pool of desirable passengers or from their placement in the same category as women of ill repute ("Sea Hens").

In response to attacks on the ad, Benjamin Franklin published his "Apology for Printers," which, according to one later commentator, was at that time "[b]y far the best known and most sustained colonial argument for an impartial press." It also promoted the notion of a "marketplace of ideas."

Originally published in the June 10, 1731, edition of the Pennsylvania Gazette, Franklin's "Apology" contended that "Printers are educated in the Belief that when Men differ in opinion, both Sides ought equally to have the Advantage of being heard by the Publick."

This incident illustrates that, at least to Franklin, the "Opinions" stated even in advertisements should be "heard by the Publick." Thus, America's first and most famous sustained defense of a free press, and of the very notion of a marketplace of ideas, came in response to an attack on a classic example of commercial speech.

Next issue: Part 2 -- the Revolution, state legislation from colonial days to Reconstruction, and the 20th century dichotomy between commercial and noncommercial speech.

Media Institute Report Gives Federal Courts High Marks

 Federal courts were the staunchest defenders of commercial speech rights in 1999, outperforming federal Executive Branch agencies and state and local governments (including state courts), concludes a new survey by The Media Institute.

The Judicial Branch earned a solid "B," compared to a "C" for both the Executive Branch and state and local.

These findings are part of an annual review, now in its fourth year, of government actions affecting media speakers. Titled The First Amendment and the Media  2000, the book examines 43 issue areas in four major categories: online, broadcasting and cable television, libel law, and commercial speech.

Federal courts received "A"s for commercial speech decisions involving casino gambling commercials (Supreme Court), investment advice publishers, promotion of off-label drug uses (District Court for D.C.), and dietary supplement health claims (D.C. Circuit).

The Ninth Circuit earned high marks for striking a ban on outdoor tobacco ads, as did the Tenth Circuit for invalidating FCC regulations restricting the use of phone customer data.

These were offset by several unfavorable decisions, such as a Supreme Court ruling restricting the release of public records for commercial purposes. The Sixth and Ninth circuits had issued pro-First Amendment decisions on that issue.

The survey can be purchased from The Media Institute by calling 202-298-7512.