Question

Business Law questions:

1. For many years, the Supreme Court believed that “commercial speech” was entitled to less protection than other forms of speech. One defining element of commercial speech is that its dominant theme is to propose a commercial transaction. This kind of speech is protected by the First Amendment, but the government is permitted to regulate it more closely than other forms of speech. However, the government must make reasonable distinctions, must narrowly tailor the rules restricting commercial speech, and must show that government has a legitimate goal that the law furthers. Edward Salib owned a Winchell’s Donut House in Mesa, Arizona. To attract customers, he displayed large signs in store windows. The city ordered him to remove the signs because they violated the city’s sign code, which prohibited covering more than 30 percent of a store’s windows with signs. Salib sued, claiming that the sign code violated his First Amendment rights. What was the result, and why?

3. The employees of the US Treasury Department that work the border crossing between the United States and Mexico learned that they will be subject to routine drug testing. The customs bureau, which is a division of the treasury department, announces this policy along with its reasoning: since customs agents must routinely search for drugs coming into the United States, it makes sense that border guards must themselves be completely drug-free. Many border guards do not use drugs, have no intention of using drugs, and object to the invasion of their privacy. What is the constitutional basis for their objection?

4. Happy Time Chevrolet employs Jim Bydalek as a salesman. Bydalek takes part in a G*ay Pride March in Los Angeles, is interviewed by a local news camera crew, and reports that he is g*ay and proud of it. His employer is not, and he is fired. Does he have any constitutional causes of action against his employer?

Answer 1

Answer:

1) This Comment examines the evolution and analytical structure of the Supreme Court's commercial speech doctrine. The Comment first argues that the Court has failed to articulate a principled definition of commercial speech. The Court has failed in its efforts to define commercial speech because, unlike any other category of speech the Court has created thus far, the Court's definitional efforts focus upon the speaker's motive rather than upon the content of the speech. Notwithstanding the Court's frequent protestations to the contrary, speech becomes commercial speech only when it is motivated by profit. The unacknowledged use of motive to define a purportedly textual category of speech yields a definitional incoherence that results in the unpredictable application of the doctrine. The Comment contends that, at a minimum, the definition of commercial speech should be redrawn in explicitly content-based terms.

The Comment next argues that the Court's justifications for giving commercial speech less first amendment protection than other forms of speech are invalid. Those justifications ignore the very value structure of the first amendment that the Court says it applies to commercial speech cases. The true justification for the lesser protection afforded commercial speech lies in the Court's unarticulated suspicion of profit-motivated speech and attendant willingness to allow greater latitude to regulations of such speech. The Comment argues that this justification should be acknowledged and discarded in favour of an explicitly value-based analysis.

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