The Commodities Futures Trading Commission (CFTC) says that anyone who wants to publish opinions on commodity futures -- such as gold futures or pig bellies -- must ask for a license, a tedious process that includes fingerprinting, fees, audits, and a background check. Publishing without registration is a federal felony.

In court Monday morning, Institute for Justice attorneys held up a recent issue of The Wall Street Journal and asked their witness whether the content of the paper's investment columns are subject to government regulation.  "To my knowledge they are not required to register," replied Gerald Gay, a former chief economist for the CFTC.

But the government has a ready defense: It is regulating a profession, not a publication.

Attorneys for the US Justice Department, which is defending the regulation, contend that the CFTC should have the power to control investment advisers who offer advice for a fee.  The commission was created by Congress in 1974 to regulate futures contracts for commodities, including oil, natural gas, currency, electricity, and agricultural products. In 1996, the CFTC updated its regulations -- which already applied to newsletters -- to include the Internet and computer software.  The agency defends its rules as a necessary "cornerstone of the regulatory framework enacted by Congress" to protect consumers.

During cross-examination, government attorney William Liebman tried to show how The Wall Street Journal differs from the commodity-advice Web sites that are suing to overturn the CFTC rules. "It's not a publication dedicated solely to providing financial information or advice, is it?" he asked.

The institute is representing 10 people who publish and read books, newsletters, and Web sites about commodity trading. Some offer advice, while others merely subscribe to the publications. All want the government to stop regulating commodity-investment advice.   The lawsuit, Taucher v. Born, is part of the institute's larger battle against court decisions that allow government agencies to regulate all kinds of large and small businesses, as long as officials can offer a "rational basis" for the rules.

Prior to the early part of the century, US courts took a dim view of such regulations. There was a landmark laissez-faire ruling in 1905. But two things combined to change the minds of even the most obstinate justices: the economic turmoil of the Depression and President Franklin D. Roosevelt's threat of court-packing. Soon the Supreme Court began to rule that regulations that were rational in theory -- even if they made little sense in practice -- were perfectly constitutional.

"People like the Institute for Justice are trying to accelerate the movement back to a Constitution of liberty. That means putting restrictions on government. What they're trying to do here is trying to get rid of the dichotomy between civil rights and property rights," said John Oldham McGinnis, a professor of law at Cardozo Law School, in New York, who specializes in the history of regulation.  "They're trying to use sympathetic plaintiffs to argue that economic liberties are important to people, too," McGinnis said.

District Court Judge Ricardo Urbina said Monday in Washington, DC that the Commodity Futures Trading Commission's registration requirement "constitutes an attempt to regulate speech, not a profession."

The Institute for Justice -- a nonprofit group staffed by free-market litigators -- sued the CFTC in 1997, claiming that requiring a person to register as a "commodity trading advisor" -- even if the person does not manage funds or offer personal advice -- violates the First Amendment's prohibition on government licensing of the press. Plaintiffs in the suit include Internet publishers, authors, and subscribers.