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Unpublished Paper
Commercial Speech and the History of the First Amendment: Just What Were Those Founders Thinking?
ExpressO (2011)
  • Laura Beckerman, University of California, Berkeley

In the battle over government regulation of advertising, the originalist narrative has emerged as a potent argument. This narrative claims that governmental attempts to regulate advertising violate the First Amendment and fly in the face of the original intent of the founders of our nation. This narrative has been cited by influential figures, including Supreme Court Justice Clarence Thomas, in an effort to delegitimize governmental regulation of advertising. It adds a difficult-to-penetrate sheen of protection to commercial speech—the original intent of the founders and authors of the First Amendment.

There is just one problem with this argument. As a historical matter, it is dead wrong. From John Milton to Benjamin Franklin to James Madison, this piece examines the writings of the influential colonial and early American figures relied upon by proponents of the narrative. The originalist narrative’s historical analysis fails at every turn, because it is anachronistic, omits crucial historical context, and fails to understand the nuances of eighteenth-century views on freedom of speech and press. Careful historical analysis shows that the founders held political and religious speech, not commercial speech, at the core of the values that the First Amendment was designed to protect. This piece concludes that courts should analyze government regulation of advertising on the legal merits and not based on the historically inaccurate belief that commercial speech was central to the original intent of the First Amendment.

Publication Date
January 23, 2011
Citation Information
Laura Beckerman. "Commercial Speech and the History of the First Amendment: Just What Were Those Founders Thinking?" ExpressO (2011)
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