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Why You Need Free Speech To Find The Best Sandwich Or Hotel


What do advertising bans against Airbnb and shouting down campus speakers have in common? Both are threats to free speech protected by the First Amendment. Most of the time when people defend free speech, they talk about its role in the marketplace of ideas, rarely mentioning that we also need it in the commercial marketplace. The First Amendment protection of commercial speech enables communication between businesses, consumers, and experts. This communication is vital because it expands and informs us of all the choices we can make.

This is easy to take for granted until others interfere with the process. For example, the law that bans property owners from advertising short-term rentals on Airbnb limits opportunities for people searching for temporary places to stay. Or consider another law that prevents merchants from disclosing the surcharge for credit card purchases so they could alert consumers that paying in cash would save them money.

Suppression of commercial speech can even impact the quality of patient care. The Food and Drug Administration has a history of preventing pharmaceutical companies from sharing scientifically validated information to doctors about off-label uses for already approved drugs, limiting treatment options for patients. And until recently, Florida had a gag rule, which imposed a $10,000 fine with the possible revocation of medical licenses, for any physician who discussed the risks of firearm ownership with his or her patients.

Marketplace of Ideas Influences the Marketplace of Things

It’s also important to realize that the marketplaces of ideas and of goods and services are not distinct. The marketplace of ideas enables discussion and allows people to spread information that influences what we value. These experiences refine our conception of how we want to live, and we depend on the free flow of information enabled by commercial speech to assist us in realizing this conception through our purchases.

The connection between the ideas we discuss and the goods and services we buy means that even our political and moral principles play some role in shaping our market decisions. These principles influence our preferences, and can help match like-minded firms and consumers. Costco, for example, expresses its commitment to paying its workers a fair wage, attracting praise from customers who share the same sense of ethics about employee compensation. Starbucks advertises their environmental sustainability practices to appeal to the environmentally conscious.

Regulations Force Everyone Into the Same Preferences

Regulations of commercial speech force people to accommodate the subjective preferences of others. People naturally have different ideas about what constitutes a good life and which principles are worth following. The marketplace becomes more diverse as businesses try to appeal to customers’ different preferences. Regulating commercial speech threatens this diversity by forcing businesses to comply with the subjective preferences of some.

This happens with many labeling requirements, which are forms of compelled speech. In one court case, the state agricultural department of Florida went after a small creamery for violating a law that required companies to add vitamin A to their skim milk. The creamery, which takes pride in being “all natural” was ordered to label their milk as “non-grade A” or “imitation skim milk” or be prohibited from selling it.

In some cases, businesses and consumers end up incurring costs for these accommodations. The U.S. Department Agriculture, for example, found that the compliance costs of labeling requirements for food imports were enough to reduce industry production and consumer demand. Since food imports are already regulated to meet U.S. safety standards, such requirements then, exist to placate consumers with particular views, such as those who value “buying American.”

Commercial Speech Deserves Legal Protections

Some of these threats to commercial speech may come from a genuine concern for the public interest, but others come from groups whose motives are to silence others. The laws censoring Airbnb were part of the hotel industry’s plan to hurt the short-term rental site because its competition has forced hotels to lower their prices. Many American farmer and rancher organizations advocate for labeling requirements of food imports.

One of the largest dairy lobbies in the United States filed an amicus brief against the small Florida creamery. And the National Rifle Association  proposed the gag law penalizing physicians for speaking with their patients about guns.

People will always have motives to suppress others’ speech. Some do it to shield their worldview from the marketplace of ideas, others to shield their profits from marketplace competition. We depend on free speech so we can evaluate and refine our views. But we forget that we also rely on it as consumers to help us make better decisions. This is why commercial speech must be included in the fight to protect free speech.