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Commercial “Speech” is not “Protected” Speech

April 17, 2022

“Facebook” and “Twitter” are private companies that now perform public services for mass communication and, thus, are very close to becoming public utilities. Public utilities provide services that are regulated by state and local governments.

For that reason, when Facebook or Twitter decide to censor advertisers or statements placed on Facebook and Twitter, there are concerns that too much power resides in the hands of their owners and administrators.

Facebook’s decision to block advertising by the Russian government is a prudential decision that, on its face, is reasonable. We don’t want a means of mass communication manipulated by a foreign power.

On the other hand, we don’t want Facebook to censor us.

I asked one of my colleagues about the legality of censorship of advertising, and he replied,

Commercial speech doesn’t get the same kind of protection as “viewpoint” speech.

Right now the distinction is between “intermediate” scrutiny for commercial speech and “strict” scrutiny for noncommercial. It’s all garbage, of course. Both the forms of scrutiny (which really just hide policy-based balancing tests) and the commercial category are simply made up. So it’s entirely possible the courts could decide all kinds of other “interests” (synonyms for leftist ideology) could be deemed to outweigh the importance of free speech.  

When you think about the people who will be hired to cleanse Facebook or Twitter of objectionable advertising or unacceptable comments, you realize that Facebook and Twitter will be monitored on a daily basis by the same types of people who have made cable news media Leftist in orientation.

Our legal system is administered by graduates of law schools where very few are given a substantive education in Constitutional Law that is not Leftist in orientation.

Our Journalism and Communication Departments at our colleges and universities are simply havens for Left-wing bias. And, of course, the Social Science and Humanities Departments in our colleges and universities have become centers for Leftist indoctrination.

Most studies show that faculty who identify themselves as “conservative” are no more than 4% of total American faculty population.

Give the graduates of these institutions the powers of censors at Facebook or Twitter, and we will have to reexamine whether Facebook or Twitter are private companies or public utilities.

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