COMMERCIAL SPEECH DOCTRINE: CENTRAL HUDSON
FDA Proposal to Limit Tobacco Advertising
CENTRAL HUDSON G&E; v P.S.C. OF NEW YORK (USSC 1980)
BAN ON PROMOTIONAL ADS BY ELECTRIC UTILITIES.
- 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.
"[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."
- 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.
BD OF TRUSTEES OF SUNY v FOX, 109 S.Ct.3028 (1989)
SUNY admin. rules prohibit private commercial enterprises from operating in SUNY facilities (except for companies providing services/supplies necessary for operation of school).
HELD: 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.
Syllabus
Opinion
Concur
Dissent
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."
Syllabus
Opinion
Concur
Dissent
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].
Syllabus
Opinion
Concur
Dissent
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.
Syllabus
Opinion
Concur/Dissent
RUBIN v. COORS BREWING CO. (1995)
Syllabus
Opinion
Concur:
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.
New York State Ass'n of Realtors v. Shaffer, _____F3rd_____ (2d Cir 1994)
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].
Court, citing Edenfield, stressed the state's burden to produce "direct and concrete" evidence that blockbusting occurs and causes harm and that the nonsolicitation regulation would "in fact alleviate them to a material degree."
