Redish and Brill Debate the First Amendment and Commercial Speech

Should we amend the First Amendment?

That provocative question was at the center of the October 17 debate between Marty Redish, Northwestern Law’s Louis and Harriet Ancel Professor of Law and Public Policy, and Steve Brill, who founded The American Lawyer and the cable channel Court TV and is the author of the recent bestseller Tailspin: The People and Forces Behind America’s Fifty-Year Fall — and Those Fighting to Reverse It. In a packed Lincoln Hall, Jason DeSanto, a senior lecturer at Northwestern Law, moderated a lively discussion where the two articulated their view of how the First Amendment should be interpreted as it relates to commercial speech, and what the consequences of different interpretations might be. 

“I think most of his legal analysis is not only correct, but is trailblazing,” Brill said, “It’s just that the trail that got blazed has helped to destroy this nation.” 

Brill believes that the interpretation of the First Amendment supported by Redish’s scholarship has led to protections for commercial speech that have had severe consequences, pointing to the relationship between megadonors and politicians and the ability of drug companies to advertise potentially-harmful off-label uses of their products as examples.

“Steve’s fundamental mistake is to mix constitutional apples with political oranges,” Redish, who sat for interviews with Brill for the book, said. “The First Amendment is not a strategic outgrowth of your political ideology. Steve says the results of my theory have been to cause harm. I’m not totally in disagreement with that, but that’s not really the issue.”

Redish’s 1971 article, “The First Amendment in the Marketplace: Commercial Speech and the Values of Free Expression,” presented, for the first time, a detailed theoretical argument to support the position that commercial speech is deserving of substantial constitutional protection under the First Amendment guarantee of free expression. Redish developed the concept of “private self-government;” expanding on renowned philosopher Alexander Meiklejohn’s theory of self-governance, that in order for democracy to work, we must have an informed electorate, and therefore cannot place limits on the information people are able to receive when making political decisions. Redish argued that the same principle logically ought to apply to the many decisions individuals make in their own lives and as such, commercial speech ought to be treated just as political speech had been under the First Amendment.

The Supreme Court adopted this line of thinking in 1976 in Virginia Pharmacy Board v. Virginia Consumer Council, a case brought by Ralph Nader on behalf of pharmacies wanting to advertise discount drug prices, something that had previously been prohibited by the pharmacy board. The Court decided previous restrictions on commercial speech limited the “rights of listeners,” meaning that consumers in Virginia had a right to hear that they could save money on their medicine.

“You’re right about the First Amendment, which is why we need to change the First Amendment,” Brill said, saying he would like to see a constitutional amendment limiting the amount of money that can be contributed to or spent by a candidate on a political campaign. 

“The First Amendment can’t be changed to reach the political results he likes,” Redish replied.

“The more you restrict money, the more you restrict communication. The candidate who spends the most money doesn’t always win. Donald Trump didn’t rely on money, he relied on celebrity. Sometimes money can cancel out celebrity. Are there harmful consequences from this? Absolutely. But I consider the cure a lot worse than the disease.” 

Watch the full debate here.