Ninth Circuit Upholds Progressive Interpretation of Commercial Speech

To progressives, businesses have no free speech rights. They don’t see the First Amendment covering commercial speech. I’ve always found that to be an arbitrary carve-out. In Pharmaceutical Research and Manufacturers of America v. Stolfi, the Ninth Circuit got a chance to rule on this jurisprudential issue and sided with the Oregon Department of Consumer and Business Services.

The case hinged on HB 4005, a law Oregon passed requiring pharmaceutical companies to report information to the state government about pricing decisions, which is then disclosed on a State of Oregon website. Pharmaceutical companies would prefer not to do this. Their lawyers argued this Oregon law unconstitutionally compels speech.

Judges Lucy H. Koh and Jennifer Sung basically say this is definitely compelled speech, but at most it compels commercial speech, so who cares? In dissent, Judge Carlos T. Bea tries to give some nuance to this old progressive doctrine, arguing that “Commercial speech” does not mean all speech about commercial stuff. Judge Bea’s dissent could attract a Supreme Court majority and chip away at progressive denial of free speech rights to businesses.

Eric Shierman lives in Salem and is the author of We were winning when I was there.