March 31, 2014 by Tamara Piety
I have been saying that the Supreme Court’s ‘free speech” jurisprudence in the Alvarez case (that was the so-called “Stolen Valor” case about the guy lying about military honors) would be argued in a commercial speech case. And it has. The Law School Admission Council [LSAC] which administers the LSAT [the Law School Admissions Test] is suing the State of California over its law that would prohibit the LSAC from marking the score of those persons with a disability who took the test with some sort of accommodations. I have no information about the merits of this law or this practice but it looks to me like the LSAC wants to signal to those who use the scores that not all 165s are equal when it comes to LSAT scores. Call me crazy but his would seem to defeat the whole purpose of accommodations in the first place.
At any rate, the LSAC is fairly predictably arguing that this law interferes with its First Amendment rights both because it prevents it from saying something that it wants to say and requires it to (in effect) say something that it doesn’t want to say and that the law represents a “content-based regulation.” See LSAC v. California, 2014 WL 1053298 brief at *22. “Content-based restriction on speech are,” the Council argues, “particularly disfavored.” Id. And it cites and quotes Alvarez for the proposition that a “‘A content-based regulation is presumptively invalid, and is subject to strict scrutiny review.'” Id. citing U.S. v. Alvarez, 132 S.Ct. 2537, 2543 (2012).
Of course, Alvarez was not a commercial speech case and arguably doesn’t apply. If it did, you could argue, as presumably the LSAC is, that if lies like Alvarez was telling ought to be protected then truthful, non-misleading speech of the sort the LSAC wants to offer or refrain from offering, ought to be. (Again, I do not rule out the possibility that the flag the LSAC wants to put on these LSAT scores is misleading; but that is a different discussion.)
But, as I argued in my article in the Alabama Law Review, here, since the commercial speech doctrine itself is predicated on regulating speech of specific content, it could well be that there is no commercial speech doctrine any more. But I think it is significant that, as i predicted, Alvarez is being used in commercial speech cases. how long before it is used to defend fraud since in Alvarez itself the “content” that made the law “presumptively invalid” was a prohibition on lying.