Copyright (c) 2004 Case Western Reserve Law Review
Case Western Reserve University
SYMPOSIUM: NIKE V. KASKY AND THE MODERN COMMERCIAL SPEECH DOCTRINE: Paternalism, Politics, and Citizen Freedom: The Commercial Speech Quandary in Nike
54 Case W. Res. 1161
C. Edwin Baker +
Constitutional protection of commercial speech has a curious pedigree. Great free speech advocates--especially First Amendment absolutists--have long struggled to expand the scope and strength of speech protection. Often they have won. Many categories of speech now protected were once rejected as not having constitutional status. Prominent First Amendment absolutists often led the legal fight on behalf of what might be called the "people's darling privilege." 1 They argued for free speech in the contexts of seditious libel and defamation, of artistic speech generally and sexually explicit speech in particular, of indecent or profane speech, and crucially of speech favoring radical and revolutionary--as well as racist and reactionary--ideologies. Free speech battles still rage around various categories, with great "absolutist" defenders of free speech historically being consistent defenders of broader and stronger protection. Claims of "the people," that is, political agitators going back to tea parties in Boston and the "people out of doors," 2 abolitionists before the Civil War, labor activists, and all sorts of political or moral crusaders (joined by those who merely like a parade) eventually led the Supreme Court in Hague v. Committee for Industrial Organization to the counterfactual discovery of a tradition "out of mind" that offers people the right to assemble and speak in parks and on the streets. 3 This expansive protection of speech freedom has possibly its most elegant and forceful doctrinal elaborations in the work of great defenders of an absolutist First Amendment--people such as the justice Hugo Black, the ...
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