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Commercial speech doctrine is presently controversial and confused. The article seeks to clarify why the Court has protected commercial speech, and then to use these insights to elucidate the disputes that presently engulf the doctrine. The article argues that "commercial speech" is protected because of its "informational function." This contrasts sharply with "public discourse," which is protected to ensure forms of participation necessary to sustain democratic legitimacy. The boundaries that separate commercial speech from public discourse reflect sociological judgments about whether particular forms of communication are valued merely for their information, or instead as forms of communicative action that embody democratic participation. The article explores how the Court makes these judgments. It uses this difference in the constitutional value of commercial speech and public discourse to explain why the state can compel disclosures, impose overbroad regulations, and establish prior restraints within the domain of commercial speech, but not within the domain of public discourse. The article then analyzes in detail the Central Hudson test, which sets forth the rules by which the Court currently decides whether regulation of commercial speech is constitutionally justified. The test is abstract and unhelpful, because it does not reflect any particular constitutional theory of the value of commercial speech. The article assesses the ways in which the Central Hudson test can be rendered consistent with the constitutional justifications for protecting commercial speech, paying particular attention to current controversies regarding whether the state can suppress truthful commercial speech in order to modify behavior.

A leading American legal scholar offers a surprising account of the incompleteness of prevailing theories of freedom of speech. Robert C. Post shows that the familiar understanding of the First Amendment, which stresses the "marketplace of ideas" and which holds that "everyone is entitled to an opinion," is inadequate to create and preserve the expert knowledge that is necessary for a modern democracy to thrive. For a modern society reliably to answer such questions as whether nicotine causes cancer, the free and open exchange of ideas must be complemented by standards of scientific competence and practice that are both hierarchical and judgmental.Post develops a theory of First Amendment rights that seeks to explain both the need for the free formation of public opinion and the need for the distribution and creation of expertise. Along the way he offers a new and useful account of constitutional doctrines of academic freedom. These doctrines depend both upon free expression and the necessity of the kinds of professional judgment that universities exercise when they grant or deny tenure, or that professional journals exercise when they accept or reject submissions

In a series of remarkable forays, Post develops an original account of how law functions in a democratic society. He draws on work in sociology, philosophy, and political theory, to offer a radically new perspective on some of the most pressing constitutional issues of our day, such as the regulation of racist speech, pornography, and privacy.

State, civil society, and classical liberalism /Steven Scalet and David Schmidtz --Classical liberalism and civil society : definitions, history, and relations /Tom G. Palmer --Civil society and government : a liberal-egalitarian perspective /Will Kymlicka --Liberal egalitarianism : a family of theories, not a single view /William A. Galston --Critical theory perspective on civil society and the state /Kenneth Baynes --Skeptics at the celebration : civil society and the early Frankfurt School /Stephen K. White --Feminist perspectives on civil society and government /Nancy L. Rosenblum --Comment on Nancy Rosenblum's "Feminist Perspectives on Civil Society and Government" /Susan Moller Okin --Natural law, civil society, and government /Fred D. Miller, Jr. --Natural law : a response /William M. Sullivan --Limited state and a vibrant society : Christianity and civil society /John A. Coleman --Christianity, civil society, and the state : a Protestant response /Max L. Stackhouse --Civil society and government : seeking Judaic insights /Noam J. Zohar --Response to Noam Zohar /David Biale --Civil society and government in Islam /John Kelsay --Perspectives on Islam and civil society /Farhad Kazemi.

"An impassioned argument for the role of courts as a moral and social agent for change and protecting the vulnerable...The Supreme Court long considered its highest mission to be the protection of individual liberty from intrusion by government, but the court shifted its focus to social and economic equality. Constitutional scholar Robert A. Burt explores this shift and its implications, especially for the legal protection of the vulnerable. Crucial to Burt's perspective is his unconventional view of the role of judges--not simply to decide disputes, but to promote a respectful dialogue leading to a genuine understanding between parties."

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