Blogging and commercial speech

Eugene Volokh criticizes Kentucky moves to regulate lawyer blogs as advertising.  He says:

I hope the Commission quickly recognizes that it has no business restricting lawyer speech this way. Commercial advertising may indeed be restricted in certain ways, perhaps including these submission and filing fee requirements. But lawyer speech that isn't advertising — such as a lawyer's self-published book, or a magazine run by a lawyer in which the lawyer has a publisher's column — is fully protected. (I realize that any statement by anyone who's in any line of business may be indirectly a means of promoting his business; but that can't be enough to deny full First Amendment protection to books, scholarly articles, op-eds, and the like that are published by any lawyer, doctor, engineer, or business owner.)

Eugene has put his finger next to, though not on, a problem here that goes way beyond this Kentucky regulation:  What exactly is commercial speech, and why should it be entitled to less constitutional protection than non-commercial speech? 

Eugene says that the fact that a statement is by somebody “who’s in any line of business” “can’t be enough to deny full First Amendment protection” to that statement.  Oh yeah?  What exactly is the difference between Nike’s discussion of its labor practices – the issue the Supreme Court recently didn’t decide – and a lawyer’s blog demonstrating his expertise in a particular area? Or, for that matter, a law professor’s doing the same, when he also sells his books and, more generally, his expertise?  Is it the subject matter of the speech or the motive that matters? 

Of course we need a theory here.  How about this:  commercial ideas, however defined, are ideas, and therefore entitled to protection.  They clearly aren’t less important because they’re ideas that relate to markets.  For this hard-core approach, see: R.H. Coase, Advertising and Free Speech, 6 J. LEG. STUD. 1 (1977); R.H. Coase, The Market for Goods and the Market for Ideas, 64 AM. ECON. REV. 384 (1974); Aaron Director, The Parity of the Economic Market Place, 7 J. L. & ECON. 1 (1964). 

My own ideas are in various places, e.g., here, for a recent quickie, or, for a longer treatment, a chapter in that classic of legal scholarship, The Corporation and the Constitution.

But getting back to the specific topic, what about lawyer blogs?  The thing about blogs, as discussed briefly in my Law and Economics of Blogging article, is that while they are a powerful mechanism for the Hayekian development of knowledge, they also depend on less-than-robust incentives, including the desire to promote other work, ideas, and reputation. If these incentives are deemed to drag blogs into commercial speech and deny them some first amendment protection, we’ll lose some of the value of the blogosphere.  Yet if blogs do get full first amendment protection despite such "commercial" aspects, it will be hard to prevent this reasoning from spreading to other speech, including Nike's. 

So blogs may finally settle this issue of what commercial speech is and whether it belongs in a lower constitutional category.

Update: Steve Bainbridge says that "if a lawyer intends his blog to be a marketing device, as many clearly do, I would call that advertising" and that "self-promotion = advertising." 

Ok, so if Steve has links to his books in his sidebar, then this doesn't get full first amendment protection, right?  Now, if he takes those links off, but occasionally mentions prior writings?  Does he have to be selling something for money?  Why?  If so, what about the higher pay, expert gigs, etc, he gets from being a recognized expert?

In fact, I think all this is ambiguous, and most bloggers should be uncomfortable about what the Kentucky bar is doing, not just practicing lawyers.  First they came for the lawyers. . . .