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Commercial Speech And The History Of The First Amendment: Just What Were Those Founders Thinking?, Laura Beckerman

Laura Beckerman

In the battle over government regulation of advertising, the originalist narrative has emerged as a potent argument. This narrative claims that governmental attempts to regulate advertising violate the First Amendment and fly in the face of the original intent of the founders of our nation. This narrative has been cited by influential figures, including Supreme Court Justice Clarence Thomas, in an effort to delegitimize governmental regulation of advertising. It adds a difficult-to-penetrate sheen of protection to commercial speech—the original intent of the founders and authors of the First Amendment.

There is just one problem with this argument. As a historical …