Until recently, Washington, D.C., maintained what most would regard as a perfectly ordinary licensing scheme for tour guides. In 2014, the D.C. Circuit declared the scheme unconstitutional under the First Amendment in a remarkable case entitled Edwards v. District of Columbia. The court announced that the District’s regulations must be reviewed under intermediate scrutiny because they burden speech; the regulations made it “illegal to talk about points of interest or the history of the city while escorting or guiding a person who paid you to do so” without first obtaining a license. Licenses were awarded to those who passed a test and paid a $200 registration fee.
After a rather scathing review, the court concluded that the regulations failed directly to advance the government’s interest in protecting D.C. tourism from dishonest or unsatisfactory tour guides. It found that the private market — operating through rating sites like Yelp and TripAdvisor — was instead sufficient to turn “the coal of self-interest” into “a gem-like consumer experience,” thereby rendering the District’s scheme superfluous. In so holding, the court reminded the District that the “seminal work” of the “celebrated economist and philosopher” Adam Smith had long ago “captured the essence of this timeless principle: ‘It is not from the benevolence of the butcher, the brewer or the baker that we expect our dinner, but from their regard to their own interest.’”
The court’s reasoning is startling. Until very recently, it was well accepted that purely economic regulations are subject to rational basis review. This was the point of consigning Lochner v. New York to the anticanon. Since the New Deal, black-letter constitutional law has authorized the Nation to regulate the complexities of modern economic life in ways designed to modify the unobstructed operation of the private market. As Justice Frankfurter put it in 1949, Lochner, and the substantive due process it embodied, idolized:
[T]he shibboleths of a pre-machine age and these were reflected in juridical assumptions that survived the facts on which they were based. Adam Smith was treated as though his generalizations had been imparted to him on Sinai and not as a thinker who addressed himself to the elimination of restrictions which had become fetters upon initiative and enterprise in his day. Basic human rights expressed by the constitutional conception of “liberty” were equated with theories of laissez faire. The result was that economic views of confined validity were treated by lawyers and judges as though the Framers had enshrined them in the Constitution. This misapplication of the notions of the classic economists and resulting disregard of the perduring reach of the Constitution led to Mr. Justice Holmes’ famous protest in the Lochner case against measuring the Fourteenth Amendment by Mr. Herbert Spencer’s Social Statics.
Edwards is written as if that history never occurred. Edwards holds that regulations burdening speech in the marketplace must convincingly demonstrate their necessity before they can interfere with the unassisted operation of the market. Edwards puts the constitutional burden of justifying regulations of marketplace speech squarely and onerously on the state. Because almost all commercial activity proceeds through the medium of communication, Edwards effectively revives Lochnerian substantive due process.
How could the First Amendment constitutionalize the unregulated operation of the laissez-faire commercial marketplace? How could the First Amendment require the political branches to adopt the theories of an eighteenth-century philosopher, even if, after due democratic deliberation, “We the people” have decided to reject them? We have always celebrated the First Amendment as “the guardian of our democracy.” Yet now, in the hands of the D.C. Circuit, the First Amendment seems to have been transformed into a straitjacket for our institutions of democratic governance.
Unfortunately, the D.C. Circuit is not alone. Across the country, plaintiffs are using the First Amendment to challenge commercial regulations, in matters ranging from public health to data privacy. It is no exaggeration to observe that the First Amendment has become a powerful engine of constitutional deregulation. The echoes of Lochner are palpable. The Supreme Court itself recently and provocatively proclaimed that although “[t]he Constitution ‘does not enact Mr. Herbert Spencer’s Social Statics[,]’ Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting),” it nevertheless “does enact the First Amendment.”
I. Commercial Speech Doctrine
Without question, the driving force behind this striking turn in our constitutional order has been the recent and aggressive expansion of commercial speech doctrine. Until the 1970s, the First Amendment did not apply to commercial speech at all. In 1942, the Court explicitly placed commercial speech beyond the ambit of the First Amendment. But in 1976, in the watershed decision of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., the Court overruled its precedent and created modern commercial speech doctrine. The case held that the state of Virginia could not prohibit pharmacists from advertising drug prices.
At first, constitutional protection for commercial speech was supported by progressive jurists who were anxious to break information monopolies, particularly in the medical and legal professions. Conservatives on the Court vigorously objected to this expansion of First Amendment rights. Justice Rehnquist expressed concern over the “far reaching” consequences of “elevat[ing] commercial intercourse between a seller hawking his wares and a buyer seeking to strike a bargain to the same plane as has been previously reserved for the free marketplace of ideas.” He observed that “there is certainly nothing in the United States Constitution which requires the Virginia Legislature to hew to the teachings of Adam Smith in its legislative decisions regulating the pharmacy profession.” Justice Rehnquist regarded pharmacists as no “less engaged in a regulatable profession than were the opticians in Williamson [v. Lee Optical Co., 348 U.S. 483 (1955)].” He warned in 1980 that commercial speech doctrine could lead to a return:
[T]o the bygone era of Lochner v. New York, in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to implement its considered policies.
I had thought by now it had become well established that a State has broad discretion in imposing economic regulations. As this Court stated in Nebbia v. New York: “[T]here can be no doubt that upon proper occasion and by appropriate measures the state may regulate a business in any of its aspects. . . .”
During the 1990s, however, the political valence of commercial speech doctrine shifted radically. Conservatives on the Court began to appreciate its potential as a deregulatory tool. In 1995, Chief Justice Rehnquist joined an opinion by Justice Thomas invalidating a statute prohibiting beer labels from displaying alcohol content. In more recent years, conservative Justices have been leading the charge to use commercial speech doctrine to strike down economic regulation.
The deregulatory potential of constitutional protection for commercial speech did not go unnoticed by the Court that had originally established the doctrine. The Court sought to avoid that potential by stressing that “‘commercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values,’ and is subject to ‘modes of regulation that might be impermissible in the realm of noncommercial expression.’” The Court held that neither overbreadth nor prior restraint doctrines apply to commercial speech. It concluded that chilling-effect doctrine likewise did not apply to commercial speech and affirmed that content discrimination is permissible with regard to commercial speech because “[t]he First Amendment . . . does not prohibit the State from insuring that the stream of commercial information flow[s] cleanly as well as freely.” It reasoned that commercial speakers can be compelled to disclose factual information so long as the disclosures are “reasonably related” to an appropriate state interest.
Commercial speech doctrine was invented with the clear understanding that the state would be freer to regulate in the domain of commercial speech than it was “in the realm of noncommercial expression.” This difference was justified on the ground that commercial speech was “constitutionally protected not so much because it pertains to the seller’s business as because it furthers the societal interest in the ‘free flow of commercial information.’” In the canonical case Central Hudson Gas & Electric Corp. v. Public Service Commission, the Court was explicit that “[t]he First Amendment’s concern for commercial speech is based on the informational function of advertising.” The constitutional value of commercial speech lies in the rights of listeners to receive information so that they might make intelligent and informed decisions.
Ordinary First Amendment doctrine, by contrast, focuses on the rights of speakers, not listeners. It protects the right of persons to engage in the formation of “that public opinion which is the final source of government in a democratic state.” Ordinary First Amendment doctrine protects the right to participate in “public discourse,” which is to say in the modes of communication constitutionally deemed necessary to form public opinion. This is why the First Amendment has from the very beginning been characterized as essential to our democracy. In one of its very first decisions upholding a First Amendment right, the Court proclaimed that “[t]he maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.”
Ordinary First Amendment doctrine does not protect speakers’ rights merely in order to safeguard an “informational function.” We have the right to speak because we are entitled to engage in the great process of democratic self-determination, even if what we say is deliberately false. The First Amendment defends the prerogative of each of us to participate in the formation of public opinion in a manner of our own choosing. It does so because we can imagine public opinion responding to our views only if we are free to speak as we please. As the Court recently proclaimed in Citizens United v. Federal Election Commission, “[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.”
This kind of responsive democracy is in serious tension with conscripting the First Amendment to shield the undisturbed operation of the laissez faire market. Alexander Meiklejohn observed long ago that in a democracy “the governors and the governed are not two distinct groups of persons. There is only one group — the self-governing people. Rulers and ruled are the same individuals. We, the People, are our own masters, our own subjects.”
When we engage in public discourse, the First Amendment accords us the privileges of “rulers” who exercise the prerogatives of self-determination. We are given the freedom and autonomy to speak as we will. But when we engage in commercial speech, we are not participating in democratic self-determination; we are instead transacting business in the marketplace. We are accordingly communicating as “subjects” who are “ruled.” If we were to attribute the prerogatives of autonomy appropriate for self-governance to commercial speech, we could never govern ourselves at all. If the speech of “subjects” were confused with that of “rulers,” the First Amendment would simultaneously authorize democratic deliberation and render powerless the government produced by that deliberation.
The Court formulated commercial speech doctrine precisely to avoid this paradox. It explicitly characterized commercial speech as constitutionally valuable only because of its “informational function.” It explicitly created commercial speech doctrine to protect the rights of listeners rather than the autonomy of speakers. This conceptual architecture has fundamental constitutional implications.
It means, for example, that the state can regulate commercial speech using laws that discriminate on the basis of content. Because “[t]he First Amendment’s concern for commercial speech is based on the informational function of advertising . . . there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity.” Although the state cannot suppress misleading or deceptive speech in the political sphere, there is a “vast regulatory apparatus in both the federal government and the states . . . to control . . . potentially misleading or deceptive speech.”
It also means that the state can generally compel commercial speech. Because First Amendment protections of public discourse safeguard the autonomy of persons to govern themselves, they incorporate the principle that “[t]he right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’” Compelling commercial speakers to disclose factual information, by contrast, may augment the flow of information to listeners and hence enhance the “informational function” that justifies commercial speech doctrine. For this reason, compelled disclosures of commercial speech are constitutionally permissible so long as they are factual and “reasonably related” to an appropriate state interest.
II. First Amendment Protections for Commercial Speech
Judicial review of regulations that constrain commercial speech should be focused primarily on the question of whether they unduly restrict the flow of reliable information to the public. Contemporary courts appear to be losing sight of this basic point. Beguiled by the abstract generalities of the Central Hudson test,
In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
447 U.S. at 566. The elements of this test are markedly abstracted from the fundamental question of whether the circulation of information has been unduly impaired. See Post, supra note 27, at 53–54. judges have become captivated by the generic idea of “intermediate scrutiny” rather than by the specific question of whether government regulations of commercial speech unduly impair public access to accurate information.
Courts applying Central Hudson ask whether government restrictions directly advance a substantial government interest and are “not more extensive than is necessary to serve that interest.” Al-though this test imposes a potentially serious burden of justification upon the state, it is essentially peripheral to the fundamental question of whether the state has impaired the public circulation of information. Unless courts keep this question clearly in mind, they are liable to become lost.
First Amendment doctrine must be carefully crafted to protect First Amendment values. If the relevant constitutional value is the circulation of information, courts ought to employ doctrine that focuses precisely on this issue. Otherwise constitutional review simply drifts and becomes aimlessly intrusive and confused. This is what occurred, for example, in Nordyke v. Santa Clara County, where the Ninth Circuit used commercial speech doctrine to strike down Santa Clara County’s attempt to prohibit gun sales at its fairgrounds. Conceding that “the act of exchanging money for a gun is not ‘speech’ within the meaning of the First Amendment,” the Ninth Circuit nevertheless held that prohibiting the offer of firearms or ammunition for sale was a regulation of commercial speech that must be subject to Central Hudson review.
It is the intention of the Board only to prohibit any person from selling, offering for sale, supplying, delivering, or giving possession or control of firearms or ammunition to any other person at a gun show at the fairgrounds. This prohibition applies to any act initiating any of the foregoing transactions with the intent of completing them at a later date.
It is not the intention of the Board to prohibit the exchange of information or ideas about guns, gun safety, or the display of guns for historical or educational purposes.
Id. at 708–09. Nordyke never bothered to ask whether the County’s prohibition restricted the flow of useful information to the public.
It is true, as Paul Sherman suggests in his companion Commentary, that courts seem to be drifting into expanded protections for commercial speech. But it is false to assert that courts have abandoned the essential distinction between commercial speech and public discourse. Sherman is simply wrong to suggest otherwise. The extent of his error can be measured in the difference between “intermediate scrutiny” and the “strict scrutiny” for which he contends.
III. Edwards v. District of Columbia
As a matter of technical First Amendment doctrine, Edwards does not classify itself as a commercial speech case. It does not apply the Central Hudson test. It instead employs an eccentric form of “intermediate scrutiny” fashioned by cobbling together elements of the O’Brien test with criteria developed in the context of content-neutral “time, place and manner” regulations.
[S]ubject to intermediate scrutiny. Under this standard, a government regulation is constitutional if (1) “it is within the constitutional power of the Government”; (2) “it furthers an important or substantial governmental interest”; (3) “the governmental interest is unrelated to the suppression of free expression”; (4) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest,” United States v. O’Brien, 391 U.S. 367, 377 (1968); and (5) the regulation leaves open ample alternative channels for communication, see Clark v. Cmty. for Creative Non–Violence, 468 U.S. 288, 293 (1984). The failure to satisfy any prong of the test invalidates the regulation. Cmty. for Creative Non–Violence v. Turner, 893 F.2d 1387, 1392 (D.C. Cir. 1990).
755 F.3d 996, 1001–02 (D.C. Cir. 2014).
On the relationship between the O’Brien test and “time, place and manner” requirements, see Robert Post, Essay, Recuperating First Amendment Doctrine, 47 Stan. L. Rev. 1249, 1263–64 (1995). There is reason to think that the Court that invented the O’Brien test would have been shocked by its characterization as “intermediate scrutiny.” See John Hart Ely, Comment, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482 (1975). The Court created the O’Brien test to brush aside First Amendment challenges to speech that was not public discourse and that the Court believed should be regulated as conduct. Similarly, the Court created doctrinal tests for “time, place and manner” regulations in order to find a way to easily hold them constitutional. See Post, supra, at 1260–65. In the end, however, Edwards summarizes its doctrinal innovation as requiring the District of Columbia to demonstrate that its licensing requirements are “narrowly tailored to further a substantial government interest.” For all intents and purposes, Edwards applies a test that is indistinguishable from Central Hudson.
It is fascinating that Edwards characterizes its review as a form of “intermediate” scrutiny. The licensing examination administered by the District of Columbia distinguishes between right and wrong answers. It therefore obviously and patently discriminates on the basis of content. The Supreme Court long ago declared that “the most exacting scrutiny” should be applied “to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.”
It does not take much legal imagination to anticipate how a court would treat a law permitting a pamphleteer to distribute a political leaflet only if she could first pass a government-administered test. No court would apply anything other than the strictest and most conclusive scrutiny. Although Edwards states that it need not employ strict scrutiny because the District’s licensing scheme fails even “intermediate” scrutiny, no court would bother with such indirection with regard to a statute seeking to license political leaflets. So why does Edwards nonetheless apply only intermediate scrutiny?
Evidently the court in Edwards is aware that there is a constitutionally significant difference between political leaflets and the speech of professional tour guides. We regard political pamphlets as public discourse, and so we jealously protect the autonomy of persons to leaflet as they think best. But we do not normally understand professional tour guides as participating in public discourse, because we do not regard their speech as an attempt to influence the content of public opinion.
We might perhaps sharpen this distinction with an example. Imagine if the Tea Party were to offer “Tea Party guides to Washington geography.” The point of the guides would be to use sightseeing as a medium to convey the Party’s interpretation of our national history and political values. Even if the Tea Party were to charge for its tours, most courts would nevertheless categorize the tours as public discourse. Courts would regard the tours as efforts to shape the content of public opinion.
If the District were to attempt to apply its licensing regime to the Tea Party tours, any court would immediately apply strict scrutiny. By contrast, Edwards did not use strict scrutiny to evaluate a licensing regime applicable to professional tour guides. What accounts for this difference? We suggest it is because the court in Edwards implicitly understood that professional tour companies were simple commercial enterprises offering a product for sale.
It is true that professional tour guides sell a particular kind of product — information. In Sorrell v. IMS Health Inc., the Supreme Court used commercial speech doctrine to assess the constitutionality of state controls over information. Lower courts have also used commercial speech doctrine to assess state regulations of information transmission. This is because such controls impinge on the same constitutional value as that protected by commercial speech doctrine: the integrity of the “informational function.” By deploying a form of intermediate scrutiny analogous to Central Hudson, Edwards implicitly accepts this framework of analysis.
If this is an accurate interpretation of Edwards, the case should have addressed the fundamental question of whether the District’s licensing scheme materially reduced the flow of accurate information to the public. This is not an inquiry that Edwards ever considered.
IV. Speech and Constitutional Values
Those interested in expanding First Amendment protections for what Sherman calls “occupational speech,” which includes the speech of professional tour guides, offer a very different framework of constitutional analysis. Sherman claims that the tour guide industry is constitutionally privileged because it is especially speech dependent. The argument is evidently that “[w]hat tour guides do is talk for a living. . . . They’re just like stand-up comedians, journalists or novelists. And in this country, you don’t need a license from the government to be able to talk.”
The premise of Sherman’s approach is essentially that speech qua speech, wherever it occurs, is subject to the full panoply of ordinary First Amendment protections. By “speech,” Sherman apparently means communication through human language, which is why he strongly believes that licensing professional tour guides “should be treated just like any other content-defined category of speech.” Sherman argues that “[b]ecause occupational speech is speech, not conduct, ordinary First Amendment principles counsel that the content-based regulation of occupational speech is subject to strict scrutiny.”
The weakness of Sherman’s analysis is its failure to ask why we have a rule against content discrimination in the first place. Sherman has no account of why “ordinary First Amendment principles” assume the form that they do. In fact, First Amendment principles prohibit content discrimination in public discourse because every person has an equal right to participate in the formation of public opinion, regardless of what they have to say. The harsh rule against content discrimination expresses the fundamental equality of democratic citizenship. But equality of democratic citizenship has little application to occupational speech, which by definition lies outside of public discourse.
Doctors cannot claim a right of political equality to give whatever opinion they choose to their patients, regardless of whether it is misleading or incompetent. If doctors can assert First Amendment rights to protect their speech to patients in the course of professional practice, it is because of the information that they convey to patients. That is why the state may require doctors to convey accurate and reliable information, which is the point of ordinary medical malpractice law. The state cannot require persons to convey accurate and reliable information in the context of public discourse, but it can and should in the context of occupational speech.
If Sherman believes that the “ordinary” rule against content discrimination should apply to occupational speech, he must also believe that every lawyer is entitled to say what she pleases to her client, regardless of professional standards and the rules of malpractice. Although Sherman may conclude that the state can in the end prohibit malpractice to protect clients from harm, his theory nevertheless requires him to affirm that courts should apply strict First Amendment scrutiny in every malpractice case.
The stakes in this debate are not, as Sherman politely puts it, “abstract” or “academic” questions of First Amendment theory. At issue is the distinction between the speech of those engaged in self-governance (public discourse) and the speech of those who are governed. Unless we can make a distinction of this kind, we cannot speak of democratic self-determination, because virtually all government regulations will, in one way or another, “burden” speech, if by speech we mean the use of human language.
Virtually everything humans do requires the use of language. Tour guides communicate no more conspicuously than do lawyers, doctors, accountants, or anyone who files tax forms, drafts corporate contracts, or sells or advertises commercial products. Taken to its logical conclusion, extending First Amendment scrutiny to every marketplace speech act would create a First Amendment question every time a lawyer is sued for malpractice for an incompetent opinion; every time a product manufacturer is sued in strict liability for an inadequate warning; every time a commercial lease is legally required to contain certain specific terms; every time a particular contract is deemed criminal under the antitrust laws.
If speech is understood to mean human communication, it is literally everywhere. If the regulation of every speech act is a constitutional question, we must hand over our government to what Justice Scalia trenchantly calls a “black-robed supremacy.” We must abandon the possibility of meaningful self-determination and turn back our democracy to the juristocracy that controlled society in the days of Lochner.
Sherman seems to believe that we are compelled to accept this future because of the Court’s recent decision in Holder v. Humanitarian Law Project. We should remark at the outset that Humanitarian Law Project is an extraordinarily obscure and perplexing decision. It says one thing, and it does another. It upholds speech restrictions primarily on the basis of deference to an Executive Branch affidavit. This is the very opposite of “strict scrutiny,” which, if it means anything at all, must require the state to meet a serious burden of persuasion.
Most importantly, Humanitarian Law Project goes out of its way to suggest that speech with the very same content, and potentially causing analogous harm to foreign affairs, could not be criminally punished were it to be communicated in a manner that is “independent” of a terrorist group rather than “in coordination with, or at the direction of, a foreign terrorist organization.” Although Humanitarian Law Project refuses to exercise independent judicial review of harm in the context of national security and foreign affairs, it would be shocking if the Court were to exercise similar deference in the context of truly independent speech. No court would allow speakers to be thrown in jail merely for publishing independent pamphlets supporting Hamas, even if Hamas were a designated foreign terrorist organization, and even if the “political branches” were adamant that speech supportive of Hamas provided the effective equivalent of material support for Hamas.
If this analysis is correct, Humanitarian Law Project turns essentially on the contrast between independent speech and speech “in coordination with, or at the direction of, a foreign terrorist organization.” What is the constitutional relevance of this distinction? It must be that Humanitarian Law Project imagines the former as public discourse and the latter as more closely analogous to the “occupational” speech that Sherman is concerned to defend. Whatever its self-proclaimed level of scrutiny, Humanitarian Law Project is inconsistent with the far more forceful constitutional protections that courts normally apply to public discourse. Contrary to Sherman’s characterizations, therefore, Humanitarian Law Project actually reinscribes the very distinction between public discourse and other forms of speech that we have insisted is so fundamental to the architecture of First Amendment doctrine.
It is frankly difficult to imagine a world without this distinction. What Sherman calls “ordinary” First Amendment doctrine creates a public space in which every person is entitled to his or her opinion. This is a space of political equality. But does anyone desire professional relationships to be constructed on this model? Does anyone believe that every Enron accountant is entitled to his or her opinion, regardless of generally accepted accounting practices? Does anyone believe that the world would be better if professionals were trustworthy only insofar as they were led to be so by market incentives? Justice White was seeking to avoid these consequences by his concurrence in Lowe v. SEC, which is why his opinion has been so influential. But we are pointed precisely to this dystopia by Sherman’s repudiation of Lowe and by the libertarian reasoning advanced in a decision like Edwards.
Our point, and it is fundamental, is that First Amendment doctrine is plural. There is no single structure of First Amendment doctrine. The principles that protect public discourse do not apply to commercial speech, or to professional speech, or to the speech of professional tour guides. Different kinds of speech embody different constitutional values, and each kind of speech should receive constitutional protections appropriate to the value it embodies. Because speech is everywhere, Sherman’s procrustean aspiration to subject all speech to a single set of rules can lead only to doctrinal chaos. Worse, it threatens to revive the long-lost world of Lochner and destroy the very democratic governance the First Amendment is designed to protect.
* We wish to thank Amy Kapczynski and Jack Balkin for their invaluable assistance.
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