Abstract

This paper analyses the U.S. Supreme Court's Doctrine of Commercial speech. Commercial speech has been defined as speech that communicates only commercial information and proposes nothing more than a commercial transaction, such as advertising, solicitation of business, and labelling of products. Since 1975, the Supreme Court has provided commercial speech with protection under the First Amendment of the U.S. Constitution, as this was deemed necessary to protect the flow of information to the consumer making economic decisions in a free market economy. Thus, the Court recognized the important role that commercial speech has long played in the functioning of a free market economy. The law has evolved to ensure that state regulation that imposes limitations on commercial speech does not unnecessarily impede the provision of accurate information about the availability, price, quality, etc. of goods and services to consumers. The Court has developed a framework for analysing the constitutionality of state regulation limiting the dissemination of commercial speech, which it has applied in a variety of factual settings. In these cases, diverse facets of the benefits and burdens of various regulations, and some of their anticompetitive effects, have been brought to light. The paper recommends that a modified version of this framework would be a useful starting point for developing a framework to analyse the anticompetitive effects of regulation.