The First Amendment, Commercial Speech, and the Advertising Lawyer

The Supreme Court, in a few cases scattered over several decades, has implied the existence of a public right to a free flow of information as one facet of the freedom of speech; yet the Court has refrained from specifically basing a decision on any such right. But with the recent line of commercial speech decisions, the concept-of a public right to a free flow of information has become firmly established and merits detailed examination. That right, and the rationale of the Court in its commercial speech cases, may have far ranging implications. This Article explores these implications in three areas of immediate interest to the practitioner: general first amendment theory, the scope of the limited first amendment protection extended to commercial speech, and the application of commercial speech guidelines to attorney advertising. First amendment theory should serve as a signpost by providing direction for a court dealing with a free speech problem. The lack of a cohesive general theory, however, has led to con- fused and inconsistent first amendment decisions. The Supreme Court's commercial speech decisions provide a new viewpoint and an opportunity to reexamine traditional free speech theories. Part II of this Article explores the impact of the commercial speech cases on first amendment theory. Part III explores the development of the split of freedom of speech into freedom of expression and the right to a free flow of information, while Part IV follows the development of commercial speech and the extension of first amendment protections to attorney advertising. Part V highlights some of the problems faced by the advertising lawyer, with specific reference to the newly adopted Washington Rules of Professional Conduct. State rules of professional responsibility commonly have lagged behind the Supreme Court's interpretation of the first amendment and have failed to provide any certain guidelines to the attorney or judge faced with an issue in attorney advertising.