The Moral Demands of Commercial Speech Symposium: Commercial Speech and the First Amendment: Past, Present, and Future: Introduction 25 William & Mary Bill of Rights Journal 2016-2017

About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

25 Wm. & Mary Bill Rts. J. 761 (2016-2017)
The Moral Demands of Commercial Speech

handle is hein.journals/wmbrts25 and id is 795 raw text is:

INTRODUCTION: THE MORAL DEMANDS
OF COMMERCIAL SPEECH

Andrew Koppelman'

A pupil from whom nothing is ever demanded which he cannot do,
never does all he can.
-John Stuart Mill'

When the Supreme Court and free speech scholars cite John Stuart Mill, they
generally have in mind Chapter Two of On Liberty,2 which argues that the clash of
ideas will lead us to truth.' As the Supreme Court paraphrased him: It is the pur-
pose of the First Amendment to preserve an uninhibited marketplace of ideas in
which truth will ultimately prevail[.] But Mill also liked the way free speech de-
mands that we exercise our faculties. Living in a world of free speech would force
us to bring forth what was best in us.'
That argument for free speech, which focuses on its effect on character, has been
neglected by many free speech theorists.' But not by Martin Redish.
Redish argues that the intrinsic value of democracy, the one achieved by the
very existence of a democratic system[,]' is the value of having individuals control
their own destinies.' That entails the development[] of an individual's uniquely

* John Paul Stevens Professor of Law and Professor of Political Science, Department of
Philosophy Affiliated Faculty, Northwestern University.
I JOHN STUART MILL, AUTOBIOGRAPHY 45 (John M. Robson ed., Penguin Books 1989)
(1873).
2 JOHN STUART MILL, ON LIBERTY 75-118 (Gertrude Himmelfarb ed., Penguin Books
1974) (1859).
I d.
4 Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).
5 Andrew Koppelman, Veil ofignorance: Tunnel Constructivism in Free Speech Theory,
107 Nw. U. L. REv. 647, 696-700 (2013).
6 It goes unmentioned in the accounts of speech as self-realization in DANIELA. FARBER,
THE FIRST AMENDMENT 3-5 (3d ed. 2010) and ERIc BARENDT, FREEDOM OF SPEECH 13-18
(2d ed. 2005). On the other hand, see generally JEREMY WALDRON, Mill and the Value of
MoralDistress, in LIBERALRIGHTS: COLLECTED PAPERS 1981-1991, at 115 (1993); Vincent
Blasi, Free Speech and Good Character: From Milton to Brandeis to the Present, in ETERNALLY
VIGILANT: FREE SPEECH IN THE MODERN ERA 60 (Lee C. Bollinger & Geoffrey R. Stone eds.,
2002); Vincent Blasi, The First Amendment and the Ideal of Civic Courage: The Brandeis
Opinion in Whitney v. California, 29 WM. & MARY L. REv. 653 (1988); Koppelman, supra
note 5, at 707-15.
7 MARTIN H. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS 20 (1984).
8 Id.

761