A Justice's Surprise That Has Stood Its Ground: The Enduring Value of the Commercial Speech Doctrine's Powellian Balance

Abstract

One of the most important concepts of modern commercial speech related to advertising, characterized as the “Powellian balance,” resulted in a compromise between those who thought commercial expression should receive little or no First Amendment protection and those who argued that it receive the same expansive protection accorded to political expression. The private papers of Justice Lewis F. Powell, Jr. reveal the remarkable degree to which he maintained a deep commitment to balancing competing interests in shaping the commercial speech doctrine. The central argument of this monograph is that Powell's “middle way” can be employed to best promote today's vital and complex societal interests.