Tyler Broker on Expanding the “No Speculation” Test in Free Speech Cases

My friend and former student Tyler Broker is publishing an interesting and provocative free speech essay in the Gonzaga Law Review. I’ve asked Tyler to prepare a guest blog post. A draft of the full essay is available here.

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Who would be so base as to challenge the conventional wisdom that commercial speakers receive less protection than noncommercial speakers? On the other hand, who would be so incurious as to leave unexamined the fact that during the last 20 years not a single regulation on commercial speech has been upheld by the United States Supreme Court while noncommercial speakers have occasionally lost?

The conventional wisdom is correct, to some extent. Federal regulators impose an extensive and complex set of rules on commercial advertising that have no analogs for noncommercial speech. And yet, when First Amendment challenges are brought, the Supreme Court applies a scrutiny that is rhetorically harsher but substantively weaker to noncommercial speech. This essay does not criticize nor argue for additional limits on the evolution of the commercial speech doctrine, in fact quite the opposite. The essay proposes a leveling up process, arguing that the Central Hudson “no speculation rule” should apply to all free speech cases.

No case better illustrates the mechanics of the commercial speech doctrine than Rubin v. Coors Brewing Co., 514 U.S. 46 (U.S. 1995). In Rubin, a beer manufacturer challenged the Federal Alcohol Administration Act’s (FAAA), 27 U.S.C.S. § 201, prohibition against disclosing alcohol content on beer labels. The Rubin Court struck down the restriction as an irrational governmental regulatory scheme, and cast serious doubt as to whether the regulation would advance the government interest in preventing the overconsumption of alcohol “in a direct and material way”. The Rubin Court acknowledged it was “common sense” to assume “that a restriction on the advertising of a product characteristic would decrease consumer selection of a product based on that trait,” yet insisted that commercial speech regulation must not promote the government interest based on “mere speculation or conjecture.”

In contrast to the judicial skepticism in Rubin, the Roberts Court in Morse v. Frederick, 551 U.S. 393, (2007) relied on a form of speculation and conjecture. There the Court accepted a principal’s speculation not only about the consequences of a student’s message “Bong Hits 4 Jesus” displayed during a school sanctioned event at a public place, but also about the student’s intent and mental state. This speculation was allowed to stand even though 1) the Court admitted the banner was “cryptic” and could be interpreted in many ways; 2) there was no evidence the sign caused a disruption; and 3) there was no evidence that would suggest any student who views such a sign is more susceptible to drug use. Further adding to the doctrinal incoherence, the Court in Frederick refused to treat the banner as political despite the fact that Alaska voters had debated and substantially supported marijuana legislation for two decades. An evidence-based standard has been found wanting even in noncommercial cases involving political speech such as Arizona Free Enterprise Club’s Freedom Fund PAC v. Bennett, which received the strictest scrutiny possible by the Court.

When courts refuse to allow government speculation and conjecture to establish the need for censorship, the government is usefully pressed to provide material evidence proving that its speech restrictions truly serve its stated objectives. All free speech scrutiny should incorporate some form of a “no speculation” rule, requiring material evidence to justify the regulation of speech. The reasoning of the commercial speech cases is sound enough to inform all other areas of free speech scrutiny. To protect speakers from overreaching restrictions based on the Court’s (or a principal’s) untested common sense, the government must supply some evidence that the harms of speech are real.