COMMERCIAL SPEECH

Early Cases: No Protection for Commercial Speech

Valentine v. Chrestensen (1942)

Beginning of Recognition of 1A Protection

Balancing Test

Virginia State Board of Pharmacy v. Virginia Citizens' Consumer Council (1976)

"Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable."

Central Hudson Test

Central Hudson Gas and Electric v. Public Service Commission (1980) Test, P. 170

1. Is the speech protected by the 1A?

the activity, service, product is legal

the ad is not false/misleading

2. Is the government's interest in the regulation substantial?

3. Does the regulation directly advance the government's interest?

[evidence of correlations]

4. Is the regulation only as broad as is necessary to serve the substantial interest? p. 171

Advertising Vice

Posadas de Puerto Rico v. Tourism Co. (1986) p. 178

Professional Advertising

Edenfield v. Fane (1993)

Florida Bar v. Went For It (1995)

Vice Advertising Revisited

Rubin v. Coors Brewing Co. (1995) handout

44 Liquormart v. Rhode Island (1996) handout; p. 178

United States v. Edge Broadcasting (1993) p. 178

Greater New Orleans Broadcasting Assn. v. United States (1999) p. 178

Lorillard Tobacco Co. v. Reilly (2001) p. 169f.

FCLAA (Federal Cigarette Labeling and Advertising Act) requires labeling of cigarettes as a health hazard.
Massachusetts passed regulations for advertising cigars and smokeless tobacco.

On billboards—no advt. Within 1,000 feet of schools or playgrounds

In-store displays—must be 5 feet from the floor

*Central Hudson Test

prong 3: “the speech restriction [must] DIRECTLY and MATERIALLY advance the asserted government interest”

many children are over 5 feet tall, and all can look up

prong 4: “reasonable fit” between goal and means—“a means narrowly tailored to achieve the desired objective”

too sweeping in prohibiting true information about these products for adults—87-91% of all cities would be off-limits