In some instances, the promotion of such an idea takes the form of advertising. As Cutler & Muehling (1991) point out, regardless of the channel of communication taken by the agent in promoting the products of the organization, the fact that such mode of communication seeks at making a sale in it is a commercial speech. It is only until recently that this form of communication qualified as a form of speech in the American laws. After the implementation of the laws, various clauses sought to reduce the regulations of commercial speech as provided for in the first amendment.
Commercial speech in the past forty years has occupied an awkward position in the theory of first amendment. It was not until recently when the government gave a free hand in advertising regulation. Despite the tremendous efforts in achieving a freely regulated free speech in 1976, commercial speech is still in fact short of qualifying as a form of free speech (Fort & Salbu, 2007). Because of the government’s unwillingness to let go of the stringent regulatory rules of advertising, commercial speech does not qualify into the rules free speech in the country. The reluctance of the Supreme Court to grant full measure of protection of commercial speech as it did to other forms of speech, insisting on the “common sense distinction” of the law from others disqualifies this as a form of free speech. The decision by the Supreme Court in 1942 to deny first amendment protection to the distribution of a commercial advertising handbill has become one of the major anomalies in the first amendment bill (Cutler & Muehling, 1991). As such, this exception denies the precise definition of what constitutes the protection of commercial speech.
The courts in the recent years have changed the treatment of the commercial speech as a non-protected form of speech in law in the first amendment to full protection (Petty, 1993).