1st Amendment Exception for Commercial Speech Valentine v. Chrestensen (1942) Upheld ban on distribution of leaflets advertising a submarine exhibit on basis that commercial speech was not protected by the first amendment. New York Times v. Sullivan (1964) Began to chip away at the commercial speech exception in holding that editorial advertisement was protected by 1st amendment.
Extending 1st Amendment to Commercial Speech Bigelow v. Virginia (1975) HOLDING: It is a violation of the first amendment freedom of speech clause, as applied to the states through the 14th amendment due process clause for a state to prohibit newspapers from running advertisements for abortion clinics.
Extending 1st Amendment to Commercial Speech Virginia State Bd. of Pharmacy v. Virginia (1976) Court struck down state ban against pharmacies advertising drug prices on basis of public benefit in being able to competitively shop for prescription drugs.
Extending 1st Amendment to Commercial Speech Bates v. State Bar of Arizona (1977) • Court struck down absolute ban on advertising legal services. • State could regulate to protect consumers from fraud but couldn’t prevent publication truthful advertising concerning the terms and availability of routine legal services.
Commercial Speech Test Central Hudson Gas & Elect. v. Public Service Com. of NY (1980) • Voided a New York Public Service Com. regulation that prohibited regulated utilities from advertising to promote the use of more electricity. • In holding that the regulation violated the companies first amendment rights it set forth a test to be used in determining the circumstances under which commercial speech could be regulated.
Commercial Speech Test Established in Central Hudson Gas & Elect. v. Public Service Com. of NY (1980) • Commercial speech is protected by the 1st amendment as long as: • it relates to a lawful activity and • is not misleading. • In deciding if the regulation is valid, the government must show: • the regulation directly advances a "substantial" government interest • the regulation is no more extensive than is necessary to serve the government interest.
Some Sample Cases City of Cincinnati v. Discovery Network, Inc. (1993) Ruled a state could not prohibit the placement of news racks on public sidewalks when they are used for "commercial handbills" while still allowing such racks for regular newspapers. Rubin v. Coors Brewing Co. (1995) Ruled the federal government could not prohibit beer labels from displaying alcohol content.
Some Sample Cases Lorillard Tobacco Comp. V. Reilly (2001) • Tobacco company challenged Massachusetts regulations governing the advertising and sale of tobacco products. • Court upheld state regulations violated 1st amendment because they were more extensive than necessary to advance the state’s interest in preventing underage tobacco use.