Advocacy Advertising,the First Amendment,and Competitive Advantage: A Comment on Cutler & Muehling

Abstract

A continuing difficulty in regulating corporate advocacy advertising is distinguishing between political and commercial speech. An article by Cutler and Muehling argues that the competitive impact of an advertisement should be a factor in determining whether a corporate advocacy advertisement is commercial or political speech. If a corporate ad primarily benefits the ad sponsor, the ad is likely to be considered commercial speech, Cutler and Muehling say. If the ad benefits a larger industry or society, Cutler and Muehling would call the ad political speech. This comment argues that the Cutler and Muehling proposal helps little to illuminate or modify controlling Supreme Court criteria for distinguishing political and commercial speech. The comment also argues that the vagueness of the Cutler and Muehling proposal would permit the unconstitutional regulation of corporate political speech by misclassifying it as commercial speech.