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.