7.1 First Amendment protection for commercial speech

Commercial speech, which promotes products or services, has gained First Amendment protection over time. The Supreme Court's stance shifted in the 1970s, recognizing its value in informing consumers and fostering competition.

The Central Hudson test, established in 1980, balances government interests with businesses' rights. It evaluates if speech is lawful and not misleading, if regulation serves a substantial interest, and if it's appropriately tailored.

First Amendment Protection for Commercial Speech

Historical Development of Commercial Speech Protection

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• The First Amendment to the U.S. Constitution protects freedom of speech, including commercial speech, which is defined as speech that proposes a commercial transaction or promotes a product or service
• In the early 20th century, the Supreme Court held that commercial speech was not protected by the First Amendment (Valentine v. Chrestensen, 1942)
• The Court's stance on commercial speech began to shift in the 1970s, particularly with the case of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), which recognized that commercial speech deserves some First Amendment protection
  • The Court reasoned that commercial speech can provide valuable information to consumers (drug prices) and contribute to the free flow of ideas in the marketplace
• However, the Court also acknowledged that commercial speech may be subject to greater regulation than other forms of speech due to its potential to mislead or deceive consumers

Rationale for Protecting Commercial Speech

• Commercial speech can inform consumers about products, services, and prices, enabling them to make more informed decisions in the marketplace
• Protecting commercial speech promotes the free flow of information and ideas, which is essential to a functioning democracy and a free market economy
• Allowing businesses to advertise their products and services helps foster competition, innovation, and economic growth
• The First Amendment's protection of commercial speech helps prevent government overreach and censorship in the marketplace of ideas

Central Hudson Test for Commercial Speech

Overview of the Central Hudson Test

• In Central Hudson Gas & Electric Corp. v. Public Service Commission (1980), the Supreme Court established a four-part test for determining the constitutionality of commercial speech regulations
• The Central Hudson test seeks to balance the government's interest in protecting consumers and the public with the First Amendment rights of businesses to engage in commercial speech
• The test has been applied to various commercial speech regulations, such as restrictions on advertising for tobacco, alcohol, and prescription drugs

Four Prongs of the Central Hudson Test

1. The speech must concern lawful activity and not be misleading
2. The government's interest in regulating the speech must be substantial
3. The regulation must directly advance the government's interest
4. The regulation must be no more extensive than necessary to serve that interest

Criticisms of the Central Hudson Test

• The test has been criticized for being too lenient on government regulation and failing to provide sufficient protection for commercial speech
• Some argue that the test's fourth prong, which requires regulations to be no more extensive than necessary, is too vague and allows for overly broad restrictions on speech
• Others contend that the test does not adequately account for the value of commercial speech in informing consumers and promoting competition

Limitations on Commercial Speech Protection

Unprotected Categories of Commercial Speech

• False or misleading commercial speech, such as deceptive advertising, is not protected by the First Amendment and may be prohibited by the government
• Commercial speech related to illegal activities, such as the promotion of illegal drugs, is also not protected by the First Amendment

Permissible Government Regulations on Commercial Speech

• The government may impose disclosure requirements on commercial speech, such as mandating that advertisers include certain information (health warnings) or warnings (side effects) in their messages
• Commercial speech may be subject to time, place, and manner restrictions, such as limitations on billboards or restrictions on advertising in certain media outlets (television, radio)
• The Court has upheld regulations on commercial speech that target specific industries or products, such as tobacco and alcohol, due to the government's interest in protecting public health and safety

Balancing Free Speech and Government Interests

• The limitations on commercial speech protection demonstrate the ongoing tension between the First Amendment rights of businesses and the government's responsibility to protect consumers and the public
• Courts must carefully weigh the competing interests in each case to determine whether a particular regulation on commercial speech is justified and constitutional
• The line between permissible regulation and unconstitutional restriction on commercial speech continues to evolve as new cases and issues arise

Supreme Court Decisions on Commercial Speech

Recent Decisions Expanding Commercial Speech Protection

• In recent years, the Supreme Court has issued several decisions that have expanded First Amendment protection for commercial speech and made it more difficult for the government to regulate such speech
• Sorrell v. IMS Health Inc. (2011): The Court struck down a Vermont law that restricted the sale and use of prescription drug data for marketing purposes, holding that the law unconstitutionally burdened commercial speech
• Reed v. Town of Gilbert (2015): The Court held that content-based restrictions on speech, including commercial speech, are subject to strict scrutiny, the highest level of constitutional review
• National Institute of Family and Life Advocates v. Becerra (2018): The Court struck down a California law requiring crisis pregnancy centers to provide certain disclosures, holding that the law compelled speech in violation of the First Amendment

Implications and Concerns

• These decisions have raised concerns among some commentators that the Court is prioritizing commercial speech over other important government interests, such as consumer protection and public health
• The implications of these decisions may make it more challenging for governments to regulate commercial speech in industries such as tobacco, alcohol, and pharmaceuticals, where there are significant public health concerns
• Critics argue that the Court's expanding protection of commercial speech could lead to a proliferation of false or misleading advertising, making it harder for consumers to make informed decisions
• Supporters of the Court's decisions argue that robust protection for commercial speech is essential to maintaining a free market economy and preventing government overreach in the marketplace of ideas