This is aside from the first amendment problems (it's commercial speech, so it may be possible to get around those problems, but who really knows?) with antispam laws.
It's useful to remember that newspapers are commercial operations, e.g., the New York Times Corporation, and that the same arguments that commercial speech can be regulated would thus apply to newspapers....except this is not "regulate commerce" was intended to mean.
And of course book publishers and authors are engaging in commerce. By the logic that commercial speech is subject to regulation, very few things would be beyond the reach of censors and regulators.
(My informal understanding of the commerce clause is that it says only Congress may regulate tariffs and fees for commerce, that individual states may not do so. This was to preclude Virginia, say, from imposing a tariff on goods from Maryland. The commerce clause does not say that if a book publisher makes money ("commercial") that the words in the book can be regulated, censored, prior-restrained, etc. Of course, what has happened in the past several decades has been the extension of the commerce clause into areas it was not intended to go, such as laws restricting freedom of association (First A.) by claims that interstate commerce is affected by certain kinds of freedom of association, e.g., that a restaurant barring negroes would thus affect the purchase of napkins which would reduce business in nearby states which would affect interstate commerce. Of course, the same argument would imply that people should not be able to choose which motels to stay in or which restaurants to eat in or which books to buy, because all of these choices may affect "interstate commerce" and by the brain-damaged rulings of our courts only Congress may affect interstate commerce.)
The solution is of course to restate boldly that the commerce clause in the Constitution refers clearly to regulation of actual transport and shipment, of the sort between nations. Meaning, taxes and tariffs and import quotas and whatnot. And that the states do NOT have the power to act as nations do, that is, they have no power to regulate commerce...only Congress has that power.
All uses of the commerce clause involving limitations on free speech, freedom of religion, freedom of association, etc., would be ended.
--Tim May
