Commercial Speech: Central Hudson Cases CENTRAL HUDSON G&E v P.S.C. OF NEW YORK (USSC 1980) (State ban on promotional advertising for use of electricity by electric utilities.) The "Central Hudson Test" When regulating truthful advertising about lawful products or services: The government must assert a substantial state interest to justify the regulation. The government must demonstrate that the regulation of advertising directly advances the state interest. The regulation must be narrowly drawn, no more extensive than is necessary to serve the interest asserted by the state. POSADAS de PUERTO RICO v. TOURISM CO. OF P.R. (USSC 1986) (Commonwealth statute prohibited casino advertising directed at residents of Puerto Rico.) Gambling is not a constitutional right. The state could ban the activity, therefore it can ban commercial speech about it. Advertising does increase consumption of products. "[B]ecause the government could have enacted a wholesale prohibition of the underlying conduct...it is permissible for the government to take the less intrusive step of allowing the conduct, but reducing the demand through restrictions on advertising." BD OF TRUSTEES OF SUNY v FOX, 109 S.Ct.3028 (1989) College administrative. rules prohibited private commercial enterprises from operating in SUNY facilities (except for companies providing services/supplies necessary for operation of school). "Central Hudson require(s) only a reasonable 'fit' between the gov't's ends and the means chosen to accomplish those ends....So long as the means are narrowly tailored to achieve the desired objective, it is for governmental decisionmakers to judge what manner of regulation may be employed." EDENFIELD V. FANE, 113 S.Ct. 1792 (U.S. 1993) The court affirmed the 11th Cir. decision holding that Florida's ban on in-person solicitation by CPAs failed Central Hudson as not "directly advancing" the state interest asserted saying "[t]his burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree. UNITED STATES v. EDGE BROADCASTING CO., 113 S. Ct. 2696; 1993 U.S. LEXIS 4402; 125 L. Ed. 2d 345; 61 U.S.L.W. 4759; 21 Media L. Rep. 1577 (U.S.1993) The Court upheld a federal statute prohibiting the broadcast of state lottery advertising by broadcasters located in non-lottery states. The Court found a substantial state interest in "balancing the interests of lottery and non-lottery states and held that this interest was "directly served" by the lottery ban and was a "reasonable fit" because a regulation should be "not necessarily perfect, but reasonable." CINCINNATI v. DISCOVERY NETWORK, INC., 113 S. Ct. 1505; 1993 U.S. LEXIS 2401; 123 L. Ed. 2d 99; 61 U.S.L.W. 4272; 21 Media L. Rep. 1161 The court struck down a municipal ordinance banning commercial newsracks as not being a "reasonable fit" under Central Hudson. It found the commercial/noncommercial distinction bore "no relationship whatsoever" to the city's interests since "the newsracks targeted for removal [the commercial publications] were "no greater an eyesore" than those permitted to stay [the non-commercial publications]. IBANEZ v. FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF ACCOUNTANCY, 114 S. Ct. 2084 (1994). Note: While the court's opinion discusses this case as if it is a deceptive advertising case rather than a Central Hudson analysis, Justice Ginsburg's opinion relies heavily on the state's burden set in EDENFIELD. Therefore, it is included in this section. RUBIN v. COORS BREWING CO. (1995)   Court of Appeals decision in same case: Adolph Coors Co. v. Bentsen, 2 F3rd 355, 21 MLR 2022 ( 10th. 1993) Liquormart 44 v. Rhode Island (1996) Rhode Island's ban on advertisements that provide the public with accurate information about retail liquor prices is an unconstitutional abridgment of the freedom of speech. While there are significant differences among the four opinions written in the case as to the proper analysis in commercial speech cases, a majority of the Court appears to agree that Posadas was wrongly decided. United States v. Valley Broadcasting, 107 F. 3rd 1328 (9th Cir. 1997), cert denied, 118 S.Ct. 1050 (1998) The Circuit court found that a federal ban on broadcast advertising of lotteries, gift enterprises, or other similar schemes was unconstitutional when applied to broadcast commercial for Nevada-based casinos on Nevada television stations. The government failed to prove that the ban directly advanced the state's interest under Central Hudson. Greater New Orleans Broadcasting Assn. v. U. S. , ___ U.S. ____ (1999) FCC regulations limiting advertising about casino gambling held unconstitutional Greater New Orleans Broadcasters Assn.v. FCC, ___ F3rd ___ (5th Cir. 1998), cert accepted. The Fifth Circuit upheld the federal ban on broadcast advertising of lotteries, gift enterprises, or other similar schemes Lorillard Tobacco Co. v. Reilly, 121 S.Ct. 2404(2001) Massachusetts outdoor and point-of-sale advertising regulations relating to smokeless tobacco and cigars violate the First Amendment, but the sales practices regulations relating to all three tobacco products are constitutional.

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