Frederick Schauer

Commercial Speech and the Perils of Parity

William & Mary Bill of Rights Journal


Existing First Amendment doctrine has for forty years evaluated regulations of commercial advertising under a so-called intermediate standard of review. Unlike in earlier times, much commercial advertising is now treated as speech subject to some protection under the First Amendment, but the degree of protection is less than that given to the political, ideological, and literary speech long understood to lie at the core of the First Amendment.

Although some commentators (including this one) lament the inclusion of commercial advertising within the ambit of the First Amendment at all, it is too late in the day to expect a reversal of a doctrinal trend of increasing vintage. More interesting, perhaps, is the argument from the other direction, with some Supreme Court Justices and some commentators maintaining that there is no good reason to give now-covered commercial advertising a lesser degree of protection than that long available to core First Amendment communication. The goal of this Article is to address that claim, not so much by objecting to it, but by examining the implications of parity—the consequences of granting to commercial advertising a degree of protection that is commensurate with (or at least close to) the strict (and thus not intermediate) scrutiny available to much of the speech covered by the First Amendment.


Frederick Schauer, Commercial Speech and the Perils of Parity, 25 William & Mary Bill of Rights Journal, 965–979 (2017).

More in This Category