Why Do We See Commercial Speech as a Free Speech Issue?

This is sort of a nebulous thought, but I've just come from my First Amendment class where we were discussing the issue of commercial speech, that is, how and when the government may regulate advertising more strictly than it regulates most communication. And... I've been kind of uneasy during the whole discussion. I'm pretty sure I agree with the result of the early cases, the Blackmun cases from around 1976 striking down wholesale prohibitions on advertising by certain professions (doctors, lawyers, pharmacists, etc.). But I also have a very strong gut reaction against the more recent cases, wherein the conservatives have taken the idea that commercial speech receives First Amendment protection and run wild with it in their usual corporatist direction. Say, for instance, the recent D.C. Circuit case striking down the latest batch of warning-label requirements for cigarettes. But of course that gut reaction lines up 100% with my policy preferences, and it's true that most of the arguments people make for distinguishing commercial speech from any other kind of speech fail. (The same is true of a lot of things that have traditionally been labeled "low-value" speech, like obscenity, say.) Thus the discomfort. But after getting home from class I had a thought that I'm not sure is right, or workable, but if it is would solve a lot of the problems I'm having justifying those instinctive reactions. Here it is:

Why are we treating this as a free speech issue at all? Take those cigarette labeling requirements, for instance. The government isn't exactly compelling anyone to speak. Rather the government is prohibiting anyone to sell cigarettes without engaging in a certain bit of speech. See the difference? It's easy to avoid the purported compulsion to speak; all you have to do is not sell cigarettes, which really is a good idea anyway 'cause cigarettes are evil. The same logic applies, of course, to the old "doctors can't advertise" laws: in a sense they're not really restricting anyone's speech, they're restricting people's ability to be doctors by conditioning being a doctor on agreeing not to exercise what might otherwise be a free speech right. Back at the higher level of generality, the point is that commercial speech is distinctive because entering into a certain line of commerce is a voluntary decision, and as the equal protection cases were quick to note, it's a lot less problematic when the government visits some disadvantage upon people who could have chosen not to be in a position to receive the disadvantage.

Now, assuming I'm right and that we can and perhaps should stop viewing these cases as being real First Amendment cases, that's a long way from the end of the analysis. Really it's the beginning of the analysis, and the analysis is going to strike a lot of stuff down, or it should anyway. Because the government is most emphatically not unlimited in its ability to restrict people's ability to pursue a certain line of commerce. It cannot say, for instance, that if you want to be a doctor you have to contribute to the campaign committee of the ruling party. It can't say that if you want to be a lawyer you have to sign an oath of belief in god. There is, in other words, some right to engage in economic activity without undue obstruction. But obviously there can be lots and lots of due obstructions; see generally all jurisprudence after 1937. So the question becomes, in essence, which restrictions on the ability to pursue a certain profession or what-have-you are reasonable, and which are not. This analysis should be basically located under the Privileges or Immunities Clause of the Fourteenth Amendment, or in the Ninth Amendment if we're talking about the feds. It can also have a bit of an Equal Protection component to it. Both of those are of course really doctrinally difficult, since the Privileges or Immunities Clause was massacred by the Slaughter-House Cases and applying the Equal Protection Clause to economic regulations is, with good reason, generally considered a no-no. That's actually the point of Carolene Products, the footnote-in-history with the history-making footnote that spawned strict scrutiny. (Actually it's one tiny little point that the court makes in passing, but because of the footnote it's the only reason anyone remembers the case, heh.)

But the whole point here is to upend doctrine, and it strikes me as quite reasonable to say that the privileges and immunities of citizens of the United States include some sort of economic rights, though not in as hard-core laissez-faire a way as what the Lochner Court thought. Determining the content of those rights, as with all unenumerated rights, is going to involve something resembling moral or political philosophy, to involve reasoning about which purported economic rights are really necessary in a free society and which are merely impediments to a free society's quest to govern itself. Some such distinction is obviously necessary: the government may ban the profession of hit-man, but it probably cannot ban the profession of doctor, I think, and certainly not of lawyer, though that has independent constitutional authority behind it. And somewhere around whatever distinctions we drew there would be drawn some line between the kinds of commercial speech regulations that are acceptable and those that are not. It feels right to me to say that telling lawyers they can't advertise is unreasonable but telling tobacco companies to do, well, anything is pretty damn reasonable. (They rank not very far above hit-men in my book, honestly.) Someone else might disagree, but I think that's the proper locus of the disagreement.

The entire language of economic rights is anathema, because of what it was used to do in the first third of the 20th century. But the fact that the Lochner Court abused the idea of economic rights doesn't mean there aren't any, or that they're not important. And I think that treating commercial speech as a form of economic right rather than as a First Amendment free speech right would be both theoretically more sound and would do a better job of protecting the relevant interests while not undermining society's ability to enact beneficial economic regulations.