Commercial speech originally was not covered by the First Amendment at all. Since the 1940s, it has gained a little more protection, but not complete protection. Here's everything you need to know.
Commercial speech is used to sell a product or service, like advertising. It can also be leaflets handed out on the street, posted signs or pop-up ads you see on the internet.
Sometimes ads also include other information, and this is where things get tricky.
Courts need to decide whether a particular message gets full First Amendment protection (like political speech does) or the lesser protection of commercial speech.
Courts have to consider whether the message is mostly selling something, or mostly information, news or political comments.
Commercial speech gets slightly less First Amendment protection because the First Amendment is mainly meant to protect political speech and broader conversations about society. By contrast, commercial speech tends to involve more one-on-one transactions.
And many commercial speech regulations are designed to prevent false claims or fraud or the sale of illegal goods and services. Limits on commercial speech are designed to ensure truth in advertising, an easily understood goal that most people agree is important in their daily lives.
Commercial speech has gone on quite a journey since it was recognized as a separate category of expression by the Supreme Court.
That happened in Valentine v. Chrestensen (1942). A New York City business owner handing out leaflets offering tours of a submarine was cited for violating anti-littering laws. His response: Add a political protest message on the back. The Supreme Court was not impressed and, without further explanation, said that the First Amendment does not protect commercial advertising.
The waters were muddied when the court decided New York Times Co. v. Sullivan in 1964. While best known as a free press case, the heart of the case was a paid political ad, which the court ruled was protected by the First Amendment.
Fast forward another decade to 1975. The managing editor of a Virginia newspaper was convicted of violating a state law prohibiting anyone from encouraging others to get an abortion, which was illegal in Virginia. He published an ad that referred women to abortion services in New York, where abortion was legal. In Bigelow v. Virginia, the Supreme Court ruled that commercial speech could have some First Amendment protection.
A year later, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc., the court struck down a state law that made it illegal for pharmacies to advertise the price of prescription drugs and other medications. The court said businesses have a right to speak, and consumers have a right to receive pricing information.
In 1983, the court said in Bolger v. Youngs Drug Products Corp. that a contraceptive ad that discussed sexually transmitted diseases and family planning deserved First Amendment protection – but to a lesser degree, because the ad was primarily designed to sell a product.
The history of Supreme Court commercial speech cases resolves two issues:
So, what level of protection does commercial speech receive?
In the 1980 case of Central Hudson Gas & Elec. v. Public Service Commission, the court created a four-part test to determine whether a restriction on commercial speech is OK:
Some examples of commercial speech restrictions that have been upheld are:
Courts have struck down many attempts to regulate commercial speech.
Commercial speech is no longer outside of the First Amendment, but it still gets somewhat less protection than other speech.
To limit it, the government must show that the commercial speech in question is fraudulent, misleading or about an illegal product. Or it must use the least restrictive way to achieve a very important goal. Simply speaking: Commercial speech restrictions promote truth in advertising.
Kevin Goldberg is the First Amendment specialist for the Freedom Forum. He can be reached at [email protected] .
