January 23, 2020
By Jacob Huebert
Vugo is a
Minnesota-based tech company whose service allows vehicles hailed through
ride-sharing apps such as Uber and Lyft to show passengers entertainment and
advertising on a tablet screen. Vugo’s tablets don’t just blare a few clips and
commercials on a loop like the video screens seen in taxicabs. Passengers can
watch YouTube videos, and the ads can be interactive and offer suggestions and
discounts based on where someone is headed.
Unfortunately,
Vugo can’t do business in the country’s biggest market, New York City, because
the city has banned commercial advertising (but not non-commercial advertising)
inside vehicles—except taxis, which are allowed to show those video ads.
Vugo sued to
challenge the law for violating the First Amendment. As they argue, freedom of
speech means the government shouldn’t be allowed to pick and choose who’s
allowed to deliver a certain type of message.
But a federal
appellate court didn’t see it that way. That’s because the Supreme Court has
long given less First Amendment protection to speech it considers to be
“commercial” than it gives to other types of speech.
Why is commercial speech less protected? No one really knows, and there’s no good reason for it. Fortunately, the Court has an opportunity to set things right by taking up Vugo’s case. The Goldwater Institute and the Cato Institute filed an amicus brief urging the Court to do so this week.
In general,
if a law restricts speech based on its content—that is, based on its viewpoint
or subject matter—courts subject it to the highest level of First Amendment
scrutiny, called strict scrutiny. Strict scrutiny requires the government to
show that a restriction on speech is narrowly tailored to serve a compelling
government interest and that there’s no other way the government could serve
that interest that wouldn’t infringe on people’s First Amendment rights as
much. It’s a tough test for the government: Not many speech restrictions can
survive it because there are few interests courts have deemed “compelling,” and
the government usually can serve “compelling” interests without restricting
speech.
The
government has it easier, though, when it regulates commercial speech. The
Supreme Court has said that restrictions based on commercial speech’s content
can survive a First Amendment challenge as long as there’s a “reasonable fit”
between the regulation and a “substantial” government interest.
How has the
Court justified this differing treatment? Mostly it hasn’t—it’s just assumed
that there are “commonsense” reasons to protect commercial speech less. In
fact, there are no good reasons.
Some argue
that commercial speech warrants less protection, or no protection, because the
First Amendment was meant to protect political speech. This idea is commonly
rooted in the belief that the First Amendment protects free speech only to the
extent that it facilitates “democratic deliberation.” But that’s a modern
progressive notion, and it’s wrong. It wasn’t the view of the Founders, who
believed in protecting the right to free speech for the individual’s sake, as a
fundamental facet of personal autonomy. That’s why the First Amendment doesn’t
just protect political discourse but also protects non-political artistic
works, abstract forms of expression, and most other things a person would want
to say or write.
Giving
commercial speech second-class status defies the whole point of the First
Amendment, which is that free individuals, not government, should make
judgments about what speech is and isn’t important or worth hearing.
Besides,
commercial speech is important. Of
course, there’s much more to life than commerce, but one’s day-to-day
experience of life is greatly affected by the things one buys, from the food one eats, to the home one lives in, to the
electronic devices one uses. The free communication of information about goods
and services in the marketplace is therefore essential to allow individuals to
pursue their own conception of a good life—that is, to pursue happiness.
The Supreme
Court should hear Vugo’s case and give commercial speakers the full First
Amendment protection to which they’re entitled.
Jacob Huebert is
a Senior Attorney at the Goldwater Institute.
