Off the streets: The origins of the doctrine of commercial speech

Leading legal scholars have contended that in the 1942 case of Valentine v. Chrestensen, "the Supreme Court plucked the commercial speech doctrine out of thin air." But the idea that commercial speech was not protected by the First Amendment had been well established in the 1930s and, thus, it would be more accurate to say that the justices picked it up off the streets. The article will explore the origins of the doctrine of commercial speech by looking at two different littering cases that arose on the streets of New York City in 1940: one that ended in Magistrates Court with a dismissal and another that went to the Supreme Court and is widely seen as the origin of the doctrine of commercial speech. It shows how a wide range of individuals, institutions, and organizations were involved in creating the seedbed for the idea of commercial speech. This article contends that it was the interaction of the street legal culture and the regular processes and institutions of government that created the doctrine of commercial speech.