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VA State Board Test. “The first amendment…does not prohibit the state from ensuring that the stream of commercial information flows cleanly as well as freely .” But commercial speech is generally protected Unless it is misleading, deceitful, or untruthful

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VA State Board Test

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VA State Board Test

  • “The first amendment…does not prohibit the state from ensuring that the stream of commercial information flows cleanly as well as freely.”

  • But commercial speech is generally protected

    • Unless it is misleading, deceitful, or untruthful

    • And/or the government has a substantial interest in regulation


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Central Hudson Expands this Test

  • When is commercial speech unprotected?

    • When it is misleading or untruthful

    • When gov’t interest is substantial [VA Pharmacy Test]

    • When regulation advances the gov’t interest

    • When the regulation is “no more extensive than necessary”


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Central Hudson, cont’d

  • Disagreements

    • Why not stick with VA Pharmacy test?

      • Last two prongs seem to allow too much government intrusion

    • Rhenquist: Why can’t state regulate a state-created monopoly?

      • Eco. marketplaces are not the same thing as speech marketplaces


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Liberal Disagreements

  • Efficiency (flowing speech) vs. Legitimacy/Socialization (clean speech)


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Post-Central Hudson

  • Posadas de Puerto Rico v. Tourism Co. of Puerto Rico (1986)

    • “The Puerto Rico Legislature surely could have prohibited casino gambling by the residents of Puerto Rico altogether. In our view, the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling…”

    • The deathknell of constitutional protection for commercial speech?


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Board of Trustees State U. of NY v. Fox (1989)

Should laws that ban commercial speech receive strict scrutiny?

An Exercise


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44 Liquormarket v. RI (1996)

  • Unanimous 8-1 Decision—but why so many opinions?

    • Majority Opinion (Stevens, Kennedy, Thomas, Ginsburg, Souter)

      • Central Hudson gives intermediate scrutiny to statutes that regulate nonmisleading, truthful advertisements (3 justices)

      • A complete ban may warrant strict scrutiny (3 justices)

      • Banning these ads does not advance the state’s substantial interest in promoting temperance (4 justices)

      • Disavowal of Posadas


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44 Liquormarket cont’d

  • Concurring Opinions

    • Why not rely on historical precedent? (Scalia)

    • Why not dismantle Hudson and go back to VA Pharmacy? (Thomas)

    • Why not apply Central Hudson more narrowly, especially the 4th prong of the test? (O’Connor, Rhenquist, Souter & Breyer)


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Another Exercise

  • Nike et. al., v. Kasky (1993)


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Conceptual Confusion

  • Are we most interested in ensuring a free flow of information?

    • Thomas, and to a lesser extent O’Connor, Rhenquist, Breyer and Souter

  • Are we most interested in protecting public discourse?

    • Stevens, Ginsburg and Kennedy


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A Final Exercise

  • Lorillard Tobacco v. Reilly (2001)


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