Freedom of Commercial Speech

AUSTIN - The government will find a way to recharacterize speech in order to avoid the constitution’s protection of it, according to Institute of Justice Attorney Clark Neily, a panelist in a discussion on Thursday at the University of Texas on commercial speech.

Free Speech Dialogues, who presents a new panel on free speech each semester, hosted the “Freedom of Commercial Speech” discussion that opened debate on many topics among them was of occupational speech. The panelists — which included a journalist, attorney and law professor — discussed their experience with and understanding of commercial speech and how it affects many aspects of our lives without us realizing it. 

“We don’t have a bill of rights for when the government is behaving well,” Neily said, “We have a bill of rights for when the government is behaving badly.”

The government will do whatever it can to “shh” someone without having to say why, Neily said.

Neily explains a case he worked on in which the state of Florida sued interior designers who were working within the state without proper licenses. He said an activity like interior design should be protected by the constitution, as it is an activity based solely on speech.

Neily said an interior designer works with a client to suggest color sand furniture options; their job is to give advice. The state of Florida wanted to characterize their advice as merely the practice of an occupation, which would make the designers unentitled to any protection under the first amendment.

“Although I am a licensed interior designer my clients are more concerned with my reputation and my ideas, not a piece of paper,” Dayton, TX interior designer Karen Arnold said. “If they were to introduce an interior designing license law in Texas it would only benefit the salaries of licensed designers, quality designers would receive the short stick.”

Neily argued that the government is protecting itself and a small group of people against the public as a whole when it limits speech. Neily introduced an idea for an app that would give legal advice to any smart phone user in cases such as being pulled over by a cop is almost impossible to create due to regulations and censorship.

An app that could virtually help millions with legal problems and save them even more in lawyer retainers will struggle to be made due to the government Neily said. He said the only people who will benefit from this is the government itself and the lawyers who will gain money through the retainers they receive from clients who were not able to get advice at a cheaper price.

“Having a father as a lawyer gives me the benefits that this app would provide for others like being able to call him on the phone and within seconds getting the legal advice I need,” said University of Texas student Tara Tough, “If other people were able to do the same thing through an app power to them.”

The government preventions create a group of people who are helpless due to their inability to pay a fee for advice. The price of fees are not cheap, low-income Americans are the ones most affected by them.

“The Legal Services Corporation, the Congressionally financed organization that provides lawyers to the poor in civil matters, says there are more than 60 million Americans — 35 percent more than in 2005 — who qualify for its services,” New York Times writer Ethan Bonner said. “But it calculates that 80 percent of the legal needs of the poor go unmet.”

The price and restrictions of giving occupational advice has gotten too high said Neily, though Tamara Piety, a law professor at the University of Tulsa argues that if you are getting paid for your advice you should be liable for it, which is why the fees exist.

Neily concluded in his argument that everybody who wants to speak is entitled to robust judicial review. He said when the government tries to prevent you from speech or alter the manner in which you are trying to advertise your product they have to give a “damn good explanation as to why.”