It’s time for the Supreme Court to treat all speech equally

In a free society, speech at times can be annoying, obnoxious, unsettling or offensive. Panhandlers and political protesters can approach you on the street. Controversial ideas can be expressed on tee shirts, bumper stickers or license plates. And governments cannot block speech merely because it is irritating or bothersome — unless you are talking about commercial speech, in which case government bureaucrats have been given more deference to restrict speech.

For example, the New York City Taxi and Limousine Commission determined that Uber and Lyft drivers could not install tablets that would display advertisements or allow passengers to play games to earn the drivers a little extra income. In a city filled with 9,000-square-foot billboards, street performers and buskers, the TLC’s desire to shield riders from advertisements is quaint and paternalistic. And the Second Circuit, unfortunately, upheld that decision and found that, because commercial speech was at stake, the regulation could stand. 

The Supreme Court should take up the case to reverse that decision and overturn old precedents that have given second-class status to commercial speech.

The reduced protection of commercial speech presumes there is a clear difference between commercial and non-commercial speech. That premise always has been false and, as a result, courts have struggled to distinguish between commercial and non-commercial speech. But today, the line between commercial and non-commercial speech is increasingly blurred.

Where we shop and what products we buy are acts with political and social overtones. Many customers expect their chosen brands to align with their views on social and political issues and may boycott or refuse to support companies that do not. So, contemporary advertising is aimed not just at selling a product but also at promoting a brand image or lifestyle.

Advertisers often speak out on controversial political and social issues to promote their products to consumers. For example, athletic wear company Nike’s recent decision to feature NFL player Colin Kaepernick in its advertisements led to immense controversy, including angry Twitter posts by President Trump, but also to billions of dollars in added sales for the global brand.

Shaving product manufacturer Gillette similarly stirred debate by positioning its brand as part of the #MeToo movement with an ad targeting “toxic masculinity.” And a wide variety of advertisers promote LGBTQ rights with the ubiquitous presence of pride rainbows.

Even when companies are not expressly invoking politics, they often distinguish themselves in socially conscious ways. For example, tech giant Apple’s recent ad campaign focused on how Apple phones provide greater privacy than its competitors. Microsoft recently promoted its efforts to make its video game console and games accessible to disabled individuals.

Deciding whether a commercial is solely commercial or qualifies as political speech is, therefore, arbitrary. Moreover, the determination will depend “on the background knowledge and media consumption” of government officials, something that the Supreme Court recently held was improper when it invalidated Minnesota’s ban on political attire in the voting place. Whether speech is political or not also may depend on the identity of the speaker, which invites government favoritism. For example, an ad for flu shots from Planned Parenthood will be more politically charged than one by Rite Aid.

The line between artistic and commercial speech also is blurred when commercial advertisements are crafted with artistic flair by established musicians and artists. For example, one recent ad from Apple featured a complex animated story with original music by Grammy Award-winner Billie Eilish. Oscar-winning director Spike Jonze recently directed another ad for Apple’s HomePod.

How would you distinguish whether these commercials are “expressive” and “artistic” or “merely commercial”?  If you think the distinction is not clear, you’re not alone. Government officials are going to continue to face similar impossible decisions.

It is time for the Supreme Court to recognize that there isn’t a clear line between commercial and non-commercial speech, and that commercial speech is therefore worthy of full constitutional protection.

Daniel Ortner (@dortner1) is an attorney with Pacific Legal Foundation, which filed an Amicus Brief in support of the plaintiff in Vugo, Inc. v. City of New York advocating for greater constitutional protection for commercial speech.