Sonia K. Katyal - UCLA Law Review

1644 57 UCLA LAW REVIEW 1601 (2010)
Trade Commission is afforded broad authority to stop “deceptive” and “unfair”
advertisements, and has defined “unfair” to include ads that “‘cause[ ] or [are]
likely to cause substantial injury to consumers which is not reasonably avoidable
by consumers themselves and not outweighed by countervailing benefits to
consumers or to competition.’” 190
This view portends a deep divide between the marketplace of goods and
the marketplace of ideas: While the political marketplace of ideas is designed to
foster and encourage dissent and debate, the commercial marketplace is premised
largely on persuasion; it is not designed to permit a reciprocal exchange of
information between seller and consumer. 191
A trademark’s dual strands—its
expressive and commercial facets in the marketplace of goods—thus translates
into two potential lines of analysis regarding the proper degree of constitutional
scrutiny that should be afforded to section 2(a). One intuition, which this Part
explores, wholly characterizes trademarks as commercial speech, and little else.
Yet another view, quite reasonably, might posit that while a trademark is certainly
used for commercial purposes, it is also used for expressive purposes as
well. These dichotomous uses bring up a fundamental question about the level
of constitutional scrutiny that should be afforded to these marks. While advertisements
generally (and trademarks specifically) are considered to be well within
the purview of commercial speech, immoral, scandalous, or disparaging marks
might also be compared to the same host of issues that animated related
controversies surrounding other categories of low-value speech, like obscene or
indecent speech, as well as hate speech.
Like other forms of low-value speech, certain types of commercial
speech receive less protection under the First Amendment. Commercial speech,
because of its singular focus on economic profit, is thought to make a qualitatively
different contribution to the marketplace of ideas. 192
The Court has
reasoned that regulating false or misleading speech in the commercial context is
more justified because it “lacks the value that sometimes inheres in false or
misleading political speech,” 193 and because consumers are less likely to have the
acumen or information to question an advertiser’s claims. Moreover, the government
has opted to regulate such speech on the grounds that commercial
190. Patricia A. Davidson & Christopher N. Banthin, Untangling the Web: Legal and Policy Tools to
Restrict Online Cigar Advertisements, 35 U.S.F. L. REV. 1 (2001) (citing 15 U.S.C. § 45(n) (1994)); see also
15 U.S.C. § 45(n) (2006).
191. See Helen McGee Konrad, Note, Eliminating Distinctions Between Commercial and Political
Speech: Replacing Regulation With Government Counterspeech, 47 WASH. & LEE L. REV. 1129, 1136 (1990)
(citing Va. State Bd., 425 U.S. at 765).
192. See U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 933–34 (3d Cir. 1990).
193. Rubin v. Coors Brewing Co., 514 U.S. 476, 496 (1995) (Stevens, J., concurring).