Communication involving the sale of products or services to a consumer.
Beginning in the 1970’s the Supreme Court recognized that commercial speech was protected under the U.S. Constitution. Declaring that the First Amendment’s speech clause included commercial speech, the Court created a systematic approach to commercial speech cases and aggressively used it to overturn federal and state regulations.
The Court first recognized commercial speech as protected under the First Amendment in Bigelow v. Virginia
The Court extended its reasoning in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council
The commercial speech doctrine remained undeveloped until 1980. Then in Central Hudson Gas and Electric Corp. v. Public Service Commission of New York
With the development of the Central Hudson test, commercial speech was protected under intermediate scrutiny rather than strict scrutiny. Under strict scrutiny, the government must show a compelling interest for limiting speech rights and the law must be narrowly tailored to meet that interest. Intermediate scrutiny requires the government to show a substantial interest in regulating speech. Eventually, though, the test came closer to strict scrutiny.
After Central Hudson was decided, the justices began looking carefully at two areas of commercial speech restrictions, liquor advertisements and gambling. In Rubin v. Coors
In Forty-four Liquormart v. Rhode Island
In both cases, the justices warily eyed the ban on consumer information, demanding the government meet a high standard of showing that its regulation advanced its interest. The justices would lower that standard in cases involving gambling advertising.
The increasing popularity of state-run gambling
Likewise in United States v. Edge Broadcasting
However, in Greater New Orleans Broadcasting Association v. United States
The Court’s inconsistency in the gambling cases reflected the subjectivity of the Central Hudson test. Whether a restriction on commercial speech advanced a substantial interest required a judgment by justices based on subjective criteria. Under the Rubin, Liquormart, and Greater New Orleans cases, the Court used a stringent definition of whether the government regulation advanced its interest. A less stringent standard was used to uphold speech restrictions in Posados and Edge Broadcasting. The continued use of the Central Hudson test indicates the Court’s intention to move it from an intermediate scrutiny type of test to one closer to strict scrutiny and placing commercial speech on par with political speech.
Baldwin, Jo Jo. “No Longer the Crazy Aunt in the Basement: Commercial Speech Joins the Family.” University of Arkansas Little Rock Law Review (Fall, 1997). Oliphant, Richard Shawn. “Prohibiting Casinos from Advertising.” Arizona Law Review (Winter, 1996). Siegan, Bernard. Economic Liberties and the Constitution. Chicago: University of Chicago Press, 1980.
First Amendment speech tests
Speech and press, freedom of