Abstract

Before he redefined antitrust, Judge Robert Bork took aim at the First Amendment. Though his work in this area was not nearly as influential, it received substantial attention, particularly after President Ronald Reagan nominated Judge Bork to replace Justice Lewis Powell on the Supreme Court in 1987. Judge Bork's 1971 article, Neutral Principles and Some First Amendment Problems challenged the prevailing wisdom on the proper scope of First Amendment protections. In this article, published seven years before The Antitrust Paradox, Bork maintained that only "explicitly political" speech warranted constitutional protection. Other types of speech or expression, including much indisputably valuable speech, were not entitled to First Amendment protection.

Although Judge Bork wrote a substantial amount about the First Amendment and the regulation of commercial activity, particularly in the area of antitrust, he wrote relatively little on the intersection of these subject areas. Questions concerning commercial speech, as such, rarely captured his attention. Indeed, it was not until the 1990s that he focused on commercial speech at all. By that time, Bork believed government regulation of product advertising or other forms of commercial speech was subject to constitutional constraints. In a 1996 monograph he argued the proposed regulation of cigarette advertising was "patently unconstitutional." Whatever its merits, this position is at odds with the approach he articulated in 1971.

This brief essay explores the evolution of Judge Bork's views on commercial speech and considers possible explanations for the change. It is possible that Judge Bork's later advocacy of protection for commercial speech was a part of the broader evolution of his First Amendment views. It may also have been the result of his consideration of historical materials and scholarship suggesting that the founding generation saw commercial speech as worthy of protection. Alternatively, Judge Bork may have come to appreciate that the line between commercial and political speech is less clear than some might suppose, particularly if one does not adopt a state-centered conception of political speech. Whatever the cause, there is little question that Judge Bork's view of commercial speech did change.

This abstract has been adapted from the author's introduction.

Document Type

Article

Publication Date

Fall 2014

Publication Information

10 Journal of Law, Economics & Policy 615-631 (2014)

Comments

Written for the journal's 10th anniversary symposium: The Unique Contributions of Armen Alchian, Robert Bork, and James Buchanan (2013) at George Mason University School of Law.

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