Blogs as commercial speech

I was quoted in a National Law Journal article about law blogs as advertising (linked by WSJ's Law Blog), as saying, among other things, that the commercial speech distinction "doesn't get any hazier than blogs" (note that although I've written on constitutional law, particularly including commercial speech, I don't actually "profess" it as the article says).

Here's an excerpt from my article, From Bricks to Pajamas: The Law and Economics of Amateur Journalism, forthcoming shortly in William & Mary Law Review(footnotes omitted):

A blog might be "commercial" if it cross-promotes another business and thereby directly proposes commercial transactions, but not if it is primarily devoted to the author's personal opinions on politics and culture. The commercial speech doctrine provides little theoretical basis for drawing a line in marginal cases that have some commercial aspects. Indeed, the market for ideas arguably is constitutionally indistinguishable from other markets.

One feature of blogs ultimately may persuade the courts to take many of them out of the commercial speech category. . . . [B]loggers generally have low-powered reputational-type incentives rather than a strong profit motive, and therefore may be more deterred by regulation and the threat of penalties than conventional commercial speakers. * * *

In short, blogs that arguably promote the lawyer's business may get the lower level of protection of commercial speech, but the mix of "commercial" and non-"commercial" incentives makes this a troubling case.  If the Court wants to get rid of the commercial speech category, I suggest one way it could do this is to take a blog case.