- Consider another example: suppose that the Arizona legislature, alarmed by high rates of childhood obesity in the state, adopts the following policy. If snack foods are advertised during children’s programming, money is allocated to run ads for comparable amounts of time touting the delicious taste of fruit. Could the snack food makers complain that their speech is restricted because this policy causes them to make strategic decisions about whether to advertise during children’s programs?
Of course, commercial speech is not political speech, but that’s beside the point. The speech of snack food makers isn’t abridged by the fact that their decision about whether to speak is influenced by other speech.
The mistake of the petitioners in McComish is to focus on the effect that the law produces (chilling their speech) rather than the means by which this effect is produced. Chilling speech through sanctions is problematic; chilling speech by more speech is not.