First Amendment Protection of Commercial Speech

1. First Amendment Protection of Commercial Speech Vices and Tupperware

2. Advertising In the law, advertising also is known as commercial speech

3. Advertising Cases • Valentine v. Chrestensen (1942) • This case says “purely commercial speech” is not protected by the 1st A. In this case, the U.S. Supreme Court discusses why advertising does not deserve the First Amendment protection afforded “political speech.”

4. Advertising Cases (cont.) 2. New York Times v. Sullivan (1964) This case weakened the rule established by Valentine v. Chrestensen by granting First Amendment protection to editorial ads.

5. Advertising Cases (cont.) • 3. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) • Facts • Issue • Holding • Rationale

6. Virginia State Board of Pharmacy v. Virginia Citizens Council (1976) (cont.) Reasoning: • Regulation can be challenged by audience - 1st Amendment protects a right to receive information • 1st Amendment protects purely commercial speech - consumer & societal interest in free flow of commercial information

7. Virginia State Board of Pharmacy v. Virginia Citizens Council (1976) (cont.) Reasoning cont. 3. State’s justifications for the ban are insufficient - highly paternalistic rule that keeps citizens ignorant 4. But commercial speech is not as protected as other forms of speech. • Government may BAN false, misleading, deceptive ads and those for illegal products or service. • Government may regulate time, place & manner regulations involving political and commercial speech

8. Virginia State Board of Pharmacy v. Virginia Citizens Council (1976) (cont.) • Government may ban ads that are: • False • Misleading • Deceptive • Or promote illegal products or services Ads

9. Commercial vs. political speech • Intermediate vs. strict scrutiny • False commercial speech is not protected by 1st Amendment; false political speech is most likely to be protected. • Prior restraints are allowed on commercial speech but usually not on political speech. • Commercial speech can be compelled but political speech cannot.

10. Evolution of First Amendment Protection for Commercial Speech • Central Hudson Gas and Electric v. Public Service Commission of New York (1980) This case created a four-part test used to determine whether a government regulation of advertising violates the First Amendment.

11. Central Hudson Test 1. Is the ad eligible for First Amendment protection? 2. If yes, does the government have a substantial interest in the regulation? 3. If yes, does the regulation advance that interest? 4. Is the regulation the least restrictive alternative?

12. The Central Hudson Test (modified) SUNY v. FOX (1989) • Changes the fourth prong to: Is there a reasonable FIT between the government interest and the regulation? Is the regulation narrowly tailored to achieve the desired objective?

13. Application of the Central Hudson Test • SUNY v. Fox (1989)* • 44 Liquormart v. Rhode Island (1996) • Lorillard Tobacco v. Reilly (2001)

14. 44 Liquormart v. Rhode Island (1996) The Court struck down a Rhode Island law banning retail liquor price advertising except at the point of sale. • R.I. provided no evidence that the price-advertising ban significantly promoted the state’s interest in temperance. • There were less extensive measures likely to meet the state’s goal.

15. Lorillard Tobacco v. Reilly (2001) Supreme Court struck down a Massachusetts statute that banned ALL tobacco advertising that could be seen within 1,000 feet of schools and playgrounds. Court said restrictions to protect children from the influence of tobacco advertising are important, BUT the regulation was too restrictive because it covered too much speech.