Valor For Sale: Applying the Commercial Speech Exception to Self-Promoting Individuals
Volume 85, No. 2, Winter 2013
By Alison L. Stohr

The First Amendment of the United States Constitution sets about protecting the freedom of speech in a remarkably straightforward manner. It commands that “Congress shall make no law . . . abridging the freedom of speech,” without exceptions or qualifying modifiers. It is now widely accepted, however, “that not all expression or communication is included within ‘the freedom of speech.’” While some exceptions to this rule are uncontroversial, the treatment of several other exceptions as either unprotected, or of limited protection, is much less clear.

This Comment attempts to test the Supreme Court’s assertion that corporations should be treated the same as individual speakers—at least as far as First Amendment protections of political speech are concerned—by exploring the possibility of essentially doing the reverse: applying a categorical exception to First Amendment protection typically reserved for corporations, in the form of commercial speech, to individual speakers engaging in self-promotional speech. In other words, if corporate political speech is given the same treatment as individual political speech, should the self-promotional speech of individuals be, just as corporate promotional speech is, subject to classification as commercial speech?

Part II.A will trace the history and development of the commercial speech doctrine, including its unintentional creation, elusive definition, and underlying rationale. Part II.B will discuss how the Supreme Court has dealt with individuals and corporations by investigating the role of the speaker’s identity in commercial speech cases. Part II.C will introduce the now-overturned Stolen Valor Act of 2005, which made it a crime to falsely claim receipt of military awards, and then focus on the pending Stolen Valor Act of 2013, which includes a provision criminalizing such false claims made with an intent to benefit.

Section III will explore the practicality of the commercial speech exception’s application to individual speech, largely by considering it in the context of this proposed provision. The Stolen Valor Bill provides a working analogue to truth in advertising laws—permitted under the commercial speech exception—applied to individuals speaking not as members of a commercial profession, but as individuals. Part III.A will discuss the various ways in which the speech targeted by the Stolen Valor Bill meets the definitional requirements of commercial speech. Part III.B will review the reasons why all speech proscribed by the Stolen Valor Bill satisfies the rationale behind the commercial speech exception. Following that, Part III.C will explain why the Stolen Valor Bill falls within the traditional definition of a fraud statute.

Part III.D will conclude first with a discussion of the ramifications of applying the commercial speech exception to individuals speaking in a self-promotional, rather than professionally commercial, capacity. This Comment reasons that although a subset of the kind of speech targeted by the Stolen Valor Bill falls within both the definition and underlying rationale of the commercial speech exception, courts should not attempt to extend that exception to include the Bill’s proscribed speech. In the case of the Stolen Valor Bill, a classification of this particular type of self-promotional speech by individuals would lead to a blurring of the lines that currently divide political and commercial speech. Finally, Part III.E will discuss how the Court may need to reexamine the definition of, and rationale behind, commercial speech doctrine, in light of the changing nature of the speech proscribed by the Stolen Valor Bill.

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