In my last post, I criticized Cass Sunstein’s originalist case against the colorblind constitution. Here I discuss Sunstein’s criticism of Scalia and Thomas for their views on commercial speech. Sunstein writes:
Conservatives tend to believe the First Amendment requires courts to invalidate many restrictions on commercial advertising. But until 1976, the Supreme Court didn’t believe that the First Amendment protected commercial advertising at all. It would take a lot of work to establish that the constitutional protection that some would give to commercial advertising can be traced to the original understanding in 1791.
This is quick, too quick. To begin with, the First Amendment did not have much action until the 20th Century (in part because it was not applied against the states and in part because it was interpreted narrowly). Once it was applied, we were in a world dominated by progressive and New Deal ideas. Thus, it would be no surprise that these eras sought to draw a significant distinction between political and commercial speech. (And it is not that surprising that Justice Scalia is less receptive to commercial speech protection than Justice Thomas is, since Scalia seems more influenced by the neo-progressive view that was dominant when he went to law school.)