Federal Desk BookConstitution Annotated

First Amendment — Free Speech Clause: Commercial Speech

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amdt1.7.6 Commercial Speech

Amdt1.7.6.1 Commercial Speech Early Doctrine

In the 1970s, the Court’s treatment of “commercial speech” changed from total nonprotection under the First Amendment to qualified protection. In 1942, the Court had stated that speech concerning commercial transactions is undeserving of First Amendment protection in Valentine v. Chrestensen.1 In Chrestensen, the Court upheld a city ordinance prohibiting distributing on the street “commercial and business advertising matter,” as applied to an exhibitor of a submarine who distributed leaflets describing his submarine on one side and on the other side protesting the city’s refusal of certain docking facilities. The Chrestensen doctrine was limited to expression promoting commercial activities; whether the speaker disseminated his expression for profit or through commercial channels did not subject it to any greater regulation than if he offered it for free.2 The doctrine lasted in this form for decades, until the Court’s approach began shifting in the 1970s.

Relying on the Chrestensen doctrine in a 5-4 decision issued in 1973, the Court sustained the application of a city’s ban on employment discrimination to bar sex-designated employment advertising in a newspaper.3 Suggesting that speech does not lose its constitutional protection simply because it appears in a commercial context, the Court nonetheless described placing want-ads in newspapers as “classic examples of commercial speech,” controlled by Chrestensen because they were devoid of expressions relating to social policy and “did no more than propose a commercial transaction.” But the Court also noted that the advertisements facilitated employment discrimination, which was itself illegal.4

In 1975, the Court overturned a conviction under a state statute that made it illegal for any publication by sale or circulation to encourage or prompt procuring an abortion. The Court held the statute unconstitutional as applied to an editor of a weekly newspaper who published an advertisement announcing the availability of legal and safe abortions in another state and detailing assistance that state residents could get to obtain abortions in the other state.5 Distinguishing Chrestensen, the Court discerned that the advertisements conveyed information of other than a purely commercial nature, that they related to services that were legal in the other jurisdiction, and that the state could not prevent its residents from obtaining abortions in the other state or punish them for doing so.

In 1976, the Court eliminated these distinctions by disclaiming Chrestensen’s commercial speech “exception” to the First Amendment as it voided a statute that effectively prohibited licensed pharmacists from advertising prescription drug prices.6 In a suit brought by consumers to protect their right to receive information, the Court held that speech that does no more than propose a commercial transaction is nonetheless of such social value and entitled to protection. Noting that consumers’ interests in receiving factual information about prices may sometimes be even “keener” than their interest in political debate, the Court concluded that price competition and access to information about it serves the public interest.7 The Court ruled that state interests in the ban—protecting professionalism and the quality of prescription goods—were either badly served or not served by the statute.8

Turning from the interests of consumers to receive information to that of advertisers to communicate, the Court in 1977 voided a municipal ordinance that barred displaying “For sale” and “Sold” signs on residential lawns, purportedly to limit “white flight” resulting from a “fear psychology” that developed among White residents following sale of homes to non-Whites. The right of owners to communicate their intention to sell a commodity and the right of potential buyers to receive the message was protected, the Court determined; the community interest could have been achieved by less restrictive means and in any event may not be achieved by restricting the free flow of truthful information.9

Notes
  1. 316 U.S. 52 (1942). See also Breard v. City of Alexandria, 341 U.S. 622 (1951). The doctrine was one of the bases upon which the banning of all commercials for cigarettes from radio and television was upheld. Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (D.D.C. 1971) (three-judge court), aff’d per curiam, 405 U.S. 1000 (1972). ↩
  2. Books that are sold for profit, Smith v. California, 361 U.S. 147, 150 (1959); Ginzburg v. United States, 383 U.S. 463, 474–75 (1966), advertisements dealing with political and social matters which newspapers carry for a fee, New York Times Co. v. Sullivan, 376 U.S. 254, 265–66 (1964), and motion pictures which are exhibited for an admission fee, United States v. Paramount Pictures, 334 U.S. 131, 166 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501–02 (1952), were all during this period held entitled to full First Amendment protection regardless of the commercial element involved. ↩
  3. Pittsburgh Press Co. v. Comm’n on Human Relations, 413 U.S. 376 (1973). ↩
  4. 413 U.S. at 385, 389. The Court continues to hold that government may ban commercial speech related to illegal activity. Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 563–64 (1980). ↩
  5. Bigelow v. Virginia, 421 U.S. 809 (1975). ↩
  6. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). ↩
  7. 425 U.S. at 763–64. ↩
  8. 425 U.S. at 766–70. ↩
  9. Linmark Assocs. v. Township of Willingboro, 431 U.S. 85 (1977). ↩

Amdt1.7.6.2 Central Hudson Test and Current Doctrine

The Supreme Court established the standard that generally governs government restrictions on commercial speech in 1980’s Central Hudson Gas & Electric Corp. v. Public Service Commission.1 In that case, the Court explained that commercial speech enjoys “lesser protection” than “other constitutionally guaranteed expression.”2 After emphasizing that First Amendment protection for commercial speech “is based on the informational function of advertising, ” the Court said that “there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity.”3 Accordingly, the Court held that the government may prohibit “forms of communication more likely to deceive the public than to inform it” as well as “commercial speech related to illegal activity.”4 But if the regulated “communication is neither misleading nor related to unlawful activity,” the government’s action is subject to intermediate scrutiny.5 Under Central Hudson’s intermediate standard, the government must prove that its interest is “substantial,” and that the regulation “directly advances” that interest and is “not more extensive than is necessary to serve that interest.”6 In Central Hudson, the Court ruled a state regulation banning promotional advertising by electric utilities unconstitutional.7 Although the Court recognized the state’s alleged interests in energy conservation and equitable pricing as substantial, it concluded the total ban was not sufficiently narrowly tailored to the government’s interest.8 The Court stressed that the state regulation extended to “all promotional advertising, regardless of the impact of the touted service on overall energy use”—including barring advertisements of more energy efficient products.9

The Court has since described Central Hudson as setting out a four-pronged test for restraints upon commercial expression.10 The test applies to commercial speech, which the Court has defined alternately as speech that “does ‘no more than propose a commercial transaction’”11 and as “expression related solely to the economic interests of the speaker and its audience.”12 The Court has also distinguished laws that regulate the conduct of sellers—an “area traditionally subject to government regulation”—from those that regulate a seller’s speech.13 In Expressions Hair Design v. Schneiderman, the Court held that a New York State statute that prohibited businesses from displaying a cash price alongside a surcharge for credit card purchases burdened speech.14 Relying on Supreme Court precedent suggesting that “price regulation alone regulates conduct, not speech,” the lower court held that the statute was constitutional.15 The Supreme Court disagreed, stating “[w]hat the law does regulate is how sellers may communicate their prices,” and “[i]n regulating the communication of prices rather than prices themselves, [the statute] regulates speech.”16 The Court, however, remanded the case to the lower court to determine in the first instance whether the law survives First Amendment scrutiny.17

Under the first prong of the test, certain commercial speech is not entitled to protection; the informational function of advertising is the First Amendment concern and if an advertisement does not accurately inform the public about lawful activity, it can be suppressed.18 Accordingly, a statute prohibiting the practice of optometry under a trade name was sustained because there was “a significant possibility” that the public might be misled through deceptive use of the same or similar trade names.19 Second, if the speech is protected, the interest of the government in regulating and limiting it must be assessed. The state must assert a substantial interest to be achieved by restrictions on commercial speech.20 Third, the restriction cannot be sustained if it provides only ineffective or remote support for the asserted purpose.21 Instead, the regulation must “directly advance” the governmental interest. The Court resolves this issue with reference to aggregate effects, and does not limit its consideration to effects on the challenging litigant.22 Fourth, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restriction cannot survive.23

Although Central Hudson described the fourth prong as testing whether a restriction is more extensive than necessary, the Court has rejected the idea that a “least restrictive means” test is required.24 Instead, what is required is a reasonable “fit” between means and ends, with the means “narrowly tailored to achieve the desired objective.”25 The Court, however, does “not equate this test with the less rigorous obstacles of rational basis review; . . . the existence of ‘numerous and obvious less-burdensome alternatives to the restriction on commercial speech . . . is certainly a relevant consideration in determining whether the ‘between ends and means is reasonable.’”26

In City of Cincinnati v. Discovery Network, Inc.,27 the Court showed the importance of the “reasonable fit” standard by striking down a city’s prohibition on distributing “commercial handbills” through freestanding newsracks located on city property. The city’s aesthetic interest in reducing visual clutter was furthered by reducing the total number of newsracks, but the distinction between prohibited “commercial” publications and permitted “newspapers” bore “no relationship whatsoever” to this legitimate interest.28 The city could not, the Court ruled, single out commercial speech to bear the full onus when “all newsracks, regardless of whether they contain commercial or noncommercial publications, are equally at fault.”29

Accordingly, as in Central Hudson itself, the Court has sometimes struck down total bans as insufficiently narrowly tailored. For instance, the Court held that a state could not forbid lawyers from advertising the prices they charged for performing routine legal services.30 The Court did not deem any of the proffered state justifications for the ban sufficient to overcome the private and societal interest in the free exchange of this form of speech.31 The Court also held that a state may not categorically prohibit attorney advertising through mailings that target persons known to face particular legal problems,32 or prohibit an attorney from holding himself out as a certified civil trial specialist,33 or prohibit a certified public accountant (CPA) from holding herself out as a certified financial planner.34

Nonetheless, as stated, the Court’s current commercial speech doctrine does not require the least restrictive means, and the Court has upheld a number of commercial speech restrictions under this intermediate scrutiny standard. For instance, in Ohralik v. Ohio State Bar Ass’n, the Supreme Court rejected a constitutional challenge to a state regulation restricting person-to-person solicitation of clients by attorneys.35 Similarly, the Court upheld a rule prohibiting high school coaches from recruiting middle school athletes, finding that “the dangers of undue influence and overreaching that exist when a lawyer chases an ambulance are also present when a high school coach contacts an eighth grader.”36 The Court later refused, however, to extend this principle to in-person solicitation by certified public accountants, explaining that CPAs, unlike attorneys, are not professionally “trained in the art of persuasion,” and that the typical business executive client of a CPA is “far less susceptible to manipulation” than was the accident victim in Ohralik.37 A ban on personal solicitation is “justified only in situations ‘inherently conducive to overreaching and other forms of misconduct.’”38 To allow enforcement of such a broad prophylactic rule absent identification of a serious problem such as ambulance chasing, the Court explained, would dilute commercial speech protection “almost to nothing.”39

Two additional cases illustrate application of the intermediate scrutiny standard. In 1993, the Court upheld a federal law that prohibited broadcasters from broadcasting lottery advertisements in states that prohibit lotteries, while allowing stations in states that sponsor lotteries to broadcast such ads. The Court held there was a “reasonable fit” between the restriction and the asserted federal interest in supporting state anti-gambling policies without unduly interfering with policies of neighboring states that promote lotteries.40 The prohibition “directly served” the congressional interest, and could be applied to a broadcaster whose principal audience was in an adjoining lottery state, and who sought to run ads for that state’s lottery.41

Six years later, the Court struck down a provision of the same statute as applied to advertisements for private casino gambling that are broadcast by radio and television stations located in a state where such gambling is legal.42 The Court emphasized the interrelatedness of the four parts of the Central Hudson test: “Each [part] raises a relevant question that may not be dispositive to the First Amendment inquiry, but the answer to which may inform a judgment concerning the other three.”43 For example, although the Court recognized the government had a substantial interest in reducing the social costs of gambling, the fact that Congress has simultaneously encouraged gambling, because of its economic benefits, made it more difficult for the government to demonstrate that its restriction on commercial speech materially advanced its asserted interest and constituted a reasonable “fit.”44 In this case, the federal law’s operation was “so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it.”45 Moreover, the Court noted “the regulation distinguishes among the indistinct, permitting a variety of speech that poses the same risks the Government purports to fear, while banning messages unlikely to cause any harm at all.”46

As mentioned above, the Supreme Court has sometimes suggested that the government has greater power to regulate commercial speech because it “occurs in an area traditionally subject to government regulation.”47In Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, the Court seemed to take this principle further when it asserted that “the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling.”48 Subsequently, however, the Court eschewed reliance on this language,49 and a majority of the Court ultimately rejected Posadas in 44 Liquormart, Inc. v. Rhode Island,50 striking down the state’s ban on advertisements that provide truthful information about liquor prices. The plurality opinion in 44 Liquormart called Posadas’s First Amendment analysis “erroneous,” declining to give force to its “highly deferential approach,” and proclaiming that a state “does not have the broad discretion to suppress truthful, nonmisleading information for paternalistic purposes that the Posadas majority was willing to tolerate.”51 Four other Justices concluded that Posadas was inconsistent with the “closer look” that the Court has since required in applying the principles of Central Hudson.52

The “different degree of protection” the Court accords commercial speech has a number of consequences as regards other First Amendment doctrine. For instance, somewhat broader times, places, and manner regulations are to be tolerated,53 and the rule against prior restraints may be inapplicable.54 Further, disseminators of commercial speech are not protected by the overbreadth doctrine.55 Nonetheless, there are circumstances in which the nature of the restriction placed on commercial speech may alter the First Amendment analysis, and even result in applying a heightened level of scrutiny.

For instance, in Sorrell v. IMS Health, Inc.,56 the Court struck down state restrictions on pharmacies and “data-miners” selling or leasing information on the prescribing behavior of doctors for marketing purposes and related restrictions limiting the use of that information by pharmaceutical companies.57 These prohibitions, however, were subject to a number of exceptions, including provisions allowing such prescriber-identifying information to be used for health care research. Because the restrictions only applied to the use of this information for marketing and because they principally applied to pharmaceutical manufacturers of non-generic drugs, the Court found that these restrictions were content-based and speaker-based limits and thus subject to heightened scrutiny.58 However, the Court declined to say definitively whether Central Hudson or “a stricter form of judicial scrutiny” should apply because, in the Court’s view, the law failed to pass constitutional muster even under Central Hudson.59

More recently, the Court noted, “several Members of the Court have expressed doubts about the Central Hudson analysis and whether it should apply in particular cases.”60 Sorrell’s suggestion that content-based regulations of commercial speech might be subject to “a stricter form of judicial scrutiny”61 may be further evidence that the Court is increasing protection of commercial speech. Nonetheless, the Central Hudson test remains the primary test for commercial speech restrictions.62

Notes
  1. 447 U.S. 557, 566 (1980). ↩
  2. Id. at 563. Commercial speech is viewed by the Court as usually hardier than other speech; because advertising is the sine qua non of commercial profits, it is less likely to be chilled by regulation. Thus, the difference inheres in both the nature of the speech and the nature of the governmental interest. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771–72 n.24 (1976); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455–56 (1978). ↩
  3. Central Hudson, 447 U.S. at 563. ↩
  4. Id. at 563–64. ↩
  5. Id. at 564. ↩
  6. Id. at 566. ↩
  7. Id. at 558, 572. ↩
  8. Id. at 568–71. ↩
  9. Id. at 570. ↩
  10. In one case, the Court referred to the test as having three prongs, referring to its second, third, and fourth prongs, as, respectively, its first, second, and third. The Court in that case did, however, apply Central Hudson’s first prong as well. Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995). ↩
  11. Va. State Bd. of Pharm., 425 U.S. at 762 (quoting Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 385 (1973)). ↩
  12. Central Hudson, 447 U.S. at 561. The Court has viewed as noncommercial the advertising of views on public policy that would inhere to the economic benefit of the speaker. Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530 (1980). See also, e.g., Harris v. Quinn, 573 U.S. 616, 648 (2014) (holding that union speech on matters of public concern did “much more than” propose a commercial transaction). So too, the Court has refused to treat as commercial speech charitable solicitation undertaken by professional fundraisers, characterizing the commercial component as “inextricably intertwined with otherwise fully protected speech.” Riley v. National Fed’n of the Blind, 487 U.S. 781, 796 (1988). By contrast, a mixing of home economics information with a sales pitch at a Tupperware party did not remove the transaction from commercial speech. Board of Trustees v. Fox, 492 U.S. 469 (1989). The mere linking of a product to matters of public debate does not thereby entitle an ad to the increased protection afforded noncommercial speech. Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983). ↩
  13. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978). In Ohralik, the Court said it could cite “[n]umerous examples . . . of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, corporate proxy statements, the exchange of price and production information among competitors, and employers’ threats of retaliation for the labor activities of employees.” Id. at 456 (citations omitted). . ↩
  14. No. 15-1391 (2017). ↩
  15. Id. at 5. ↩
  16. Id. at 9–10. ↩
  17. Id. at 1. ↩
  18. Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 563, 564 (1980). Within this category fall the cases involving the possibility of deception through such devices as use of trade names, Friedman v. Rogers, 440 U.S. 1 (1979), and solicitation of business by lawyers, Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978), as well as the proposal of an unlawful transaction, Pittsburgh Press Co. v. Commission on Human Relations, 413 U.S. 376 (1973). ↩
  19. Friedman v. Rogers, 440 U.S. 1 (1979). ↩
  20. Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 564, 568–69 (1980). See also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987) (governmental interest in protecting USOC’s exclusive use of word “Olympic” is substantial); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (government’s interest in curbing strength wars among brewers is substantial, but interest in facilitating state regulation of alcohol is not substantial). Contrast United States v. Edge Broadcasting Co., 509 U.S. 418 (1993), finding a substantial federal interest in facilitating state restrictions on lotteries. “Unlike the situation in Edge Broadcasting,” the Coors Court explained, “the policies of some states do not prevent neighboring states from pursuing their own alcohol-related policies within their respective borders.” 514 U.S. at 486. However, in Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), the Court deemed insubstantial a governmental interest in protecting postal patrons from offensive but not obscene materials. Accord Matal v. Tam, No. 15-1293, slip op. at 25 (U.S. June 19, 2017) (plurality opinion). ↩
  21. 447 U.S. at 569. The ban here was found to directly advance one of the proffered interests. Contrast this holding with Bates v. State Bar of Arizona, 433 U.S. 350 (1977); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (prohibition on display of alcohol content on beer labels does not directly and materially advance government’s interest in curbing strength wars among brewers, given the inconsistencies and “overall irrationality” of the regulatory scheme); and Edenfield v. Fane, 507 U.S. 761 (1993) (Florida’s ban on in-person solicitation by certified public accountants does not directly advance its legitimate interests in protecting consumers from fraud, protecting consumer privacy, and maintaining professional independence from clients), where the restraints were deemed indirect or ineffectual. ↩
  22. United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993) (“this question cannot be answered by limiting the inquiry to whether the governmental interest is directly advanced as applied to a single person or entity”). ↩
  23. Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 565, 569–71 (1980). See also Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) (ruling that the governmental interest in not interfering with parental efforts at controlling children’s access to birth control information could not justify a ban on commercial mailings about birth control products); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (there are less intrusive alternatives—e.g., direct limitations on alcohol content of beer—to prohibition on display of alcohol content on beer label); Matal v. Tam, No. 15-1293, slip op. at 25–26 (U.S. June 19, 2017) (ruling that a ban on disparaging trademarks was not “narrowly drawn” to the government’s interest in “protecting the orderly flow of commerce”). Note, however, that, in San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 539 (1987), the Court applied the test in a manner deferential to Congress: “the restrictions [at issue] are not broader than Congress reasonably could have determined to be necessary to further these interests.” ↩
  24. Board of Trustees v. Fox, 492 U.S. 469, 476–77 (1989). ↩
  25. Board of Trustees v. Fox, 492 U.S. 469, 480 (1989). In a 1993 opinion the Court elaborated on the difference between reasonable fit and least restrictive alternative. “A regulation need not be ‘absolutely the least severe that will achieve the desired end,’ but if there are numerous and obvious less-burdensome alternatives to the restriction . . . , that is certainly a relevant consideration in determining whether the ‘fit’ between ends and means is reasonable.” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n.13 (1993). ↩
  26. Florida Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995). See, e.g., Thompson v. W. States Med. Ctr., 535 U.S. 357, 371–72 (2002) (discussing previous cases in which the Court had looked to the availability of less-speech restrictive alternatives for the government to achieve its interests). ↩
  27. 507 U.S. 410 (1993). See also Edenfield v. Fane, 507 U.S. 761 (1993), decided the same Term, relying on the “directly advance” third prong of Central Hudson to strike down a ban on in-person solicitation by certified public accountants. ↩
  28. 507 U.S. at 424. ↩
  29. 507 U.S. at 426. The Court also noted the “minute” effect of removing 62 “commercial” newsracks while 1,500 to 2,000 other newsracks remained in place. Id. at 418. ↩
  30. Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Chief Justice Warren Burger and Justices Lewis Powell, Potter Stewart, and William Rehnquist dissented. Id. at 386, 389, 404. ↩
  31. 433 U.S. at 368–79. See also In re R.M.J., 455 U.S. 191 (1982) (invalidating sanctions imposed on attorney for deviating in some respects from rigid prescriptions of advertising style and for engaging in some proscribed advertising practices, because the state could show neither that his advertising was misleading nor that any substantial governmental interest was served by the restraints). ↩
  32. Shapero v. Kentucky Bar Ass’n, 486 U.S. 466 (1988). Shapero was distinguished in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), a 5-4 decision upholding a prohibition on targeted direct-mail solicitations to victims and their relatives for a 30-day period following an accident or disaster. “Shapero dealt with a broad ban on all direct mail solicitations” (id. at 629), the Court explained, and was not supported, as Florida’s more limited ban was, by findings describing the harms to be prevented by the ban. Dissenting Justice Anthony Kennedy disagreed that there was a valid distinction, pointing out that in Shapero the Court had said that “the mode of communication [mailings versus potentially more abusive in-person solicitation] makes all the difference,” and that mailings were at issue in both Shapero and Florida Bar. 515 U.S. at 637 (quoting Shapero, 486 U.S. at 475). ↩
  33. Peel v. Illinois Attorney Disciplinary Comm’n, 496 U.S. 91 (1990). ↩
  34. Ibanez v. Florida Bd. of Accountancy, 512 U.S. 136 (1994) (also ruling that Accountancy Board could not reprimand the CPA, who was also a licensed attorney, for truthfully listing her CPA credentials in advertising for her law practice). ↩
  35. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978). But compare In re Primus, 426 U.S. 412 (1978). The distinction between in-person and other attorney advertising was continued in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (“print advertising . . . in most cases . . . will lack the coercive force of the personal presence of the trained advocate”). ↩
  36. Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 298 (2007). ↩
  37. Edenfield v. Fane, 507 U.S. 761, 775 (1993). ↩
  38. 507 U.S. at 774 (quoting Ohralik, 436 U.S. at 464). ↩
  39. 507 U.S. at 777. ↩
  40. United States v. Edge Broadcasting Co., 509 U.S. 418 (1993). ↩
  41. 507 U.S. at 428. ↩
  42. Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173 (1999). ↩
  43. 527 U.S. at 184. ↩
  44. 527 U.S. at 186–87. ↩
  45. 527 U.S. at 190. ↩
  46. 527 U.S. at 195. ↩
  47. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455–56 (1978). See also, e.g., Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011) (“[T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.”). ↩
  48. 478 U.S. 328, 345–46 (1986). ↩
  49. In Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (invalidating a federal ban on revealing alcohol content on malt beverage labels), the Court rejected reliance on Posadas, pointing out that the statement in Posadas had been made only after a determination that the advertising could be upheld under Central Hudson. The Court found it unnecessary to consider the greater-includes-lesser argument in United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993), upholding through application of Central Hudson principles a ban on broadcast of lottery ads. ↩
  50. 517 U.S. 484 (1996). ↩
  51. 517 U.S. at 510 (opinion of Stevens, J., joined by Kennedy, Thomas, and Ginsburg, JJ.). Justice John Paul Stevens’ opinion also dismissed the Posadas “greater-includes-the-lesser argument” as “inconsistent with both logic and well-settled doctrine,” pointing out that the First Amendment “presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct.” Id. at 511–512. ↩
  52. 517 U.S. at 531–32 (O’Connor, J., concurring, joined by Rehnquist, C.J., Souter, and Breyer, JJ.). ↩
  53. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 384 (1977). But, in Linmark Associates v. Township of Willingboro, 431 U.S. 85, 93–94 (1977), the Court refused to accept a times, places, and manner defense of an ordinance prohibiting “For Sale” signs on residential lawns. First, ample alternative channels of communication were not available, and second, the ban was seen rather as a content limitation. ↩
  54. Central Hudson Gas & Elec. Co. v. PSC, 447 U.S. 557, 571 n.13 (1980), citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 772 n.24 (1976). See Amdt1.7.2.3 Prior Restraints on Speech. ↩
  55. Bates v. State Bar of Arizona, 433 U.S. 350, 379–81 (1977); Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 565 n.8 (1980). ↩
  56. 564 U.S. 552, 557 (2011). ↩
  57. “Detailers,” marketing specialists employed by pharmaceutical manufacturers, used the reports to refine their marketing tactics and increase sales to doctors. 564 U.S. at 558. ↩
  58. 564 U.S. at 565. ↩
  59. 564 U.S. at 571. Although the state advanced a variety of proposed governmental interests to justify the regulations, the Court found these interests (expectation of physician privacy, discouraging harassment of physicians, and protecting the integrity of the doctor-physician relationship) were ill-served by the content-based restrictions. Sorrell, 564 U.S. at 572–77. The Court also rejected the argument that the regulations were an appropriate way to reduce health care costs, noting that “[t]he State seeks to achieve its policy objectives through the indirect means of restraining certain speech by certain speakers—that is, by diminishing detailers’ ability to influence prescription decisions. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the ‘fear that people would make bad decisions if given truthful information’ cannot justify content-based burdens on speech.” Id. at 577. ↩
  60. Thompson v. W. States Med. Ctr., 535 U.S. 357, 367 (2002). For instance, Justice John Paul Stevens criticized the Central Hudson test because it seemingly allows regulation of any speech propounded in a commercial context regardless of the content of that speech: “[A]ny description of commercial speech that is intended to identify the category of speech entitled to less First Amendment protection should relate to the reasons for permitting broader regulation: namely, commercial speech’s potential to mislead.” Rubin v. Coors Brewing Co., 514 U.S. 476, 494 (1995) (Stevens, J., concurring). Justice Clarence Thomas, similarly, wrote that, in cases “in which the government’s asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace, the Central Hudson test should not be applied because such an interest’ is per se illegitimate.” Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173, 197 (1999) (Thomas, J., concurring) (internal quotation marks omitted). Other decisions in which the Court majority acknowledged that some Justices would grant commercial speech greater protection than it has under the Central Hudson test include United States v. United Foods, Inc., 533 U.S. 405, 409–410 (2001) (mandated assessments, used for advertising, on handlers of fresh mushrooms struck down as compelled speech, rather than under Central Hudson), and Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554 (2001) (various state restrictions on tobacco advertising struck down under Central Hudson as overly burdensome). ↩
  61. Sorrell, 564 U.S. at 571. ↩
  62. See, e.g., City of Austin v. Reagan Nat’l Advert. of Austin, LLC, No. 20-1029, slip op. at 6 (U.S. Apr. 21, 2022) (“The Metromedia court did not need to decide whether the off-premises prohibition was content based, as it regulated only commercial speech and so was subject to intermediate scrutiny in any event.” (discussing Metromedia, Inc. v. San Diego, 453 U.S. 490, 507–12 (1981) (plurality opinion))). ↩