Commercial Speech
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America, at its best, is also courageous.Our national courage has been clear in times of depression and war, when defending
common dangers defined our common good. Now we must choose if the example of
our fathers and mothers will inspire us or condemn us. We must show courage in
a time of blessing by confronting problems instead of passing them on to future
generations.
Together, we will reclaim America's schools, before ignorance and apathy claim
more young lives.
We will reform Social Security and Medicare, sparing our children from struggles
we have the power to prevent. And we will reduce taxes, to recover the momentum
of our economy and reward the effort and enterprise of working Americans.
We will build our defenses beyond challenge, lest weakness invite challenge.
We will confront weapons of mass destruction, so that a new century is spared
new horrors.
President George W. Bush, First Inaugural
Address (2001)
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In the Matter of Telebrands Corp., TV Savings, LLC, and Ajit
Khubani
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Commercial:
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"Relates to or is connected with trade and traffic or commerce in general...Generic term for most all aspects of buying and selling"
Black's Law Dictionary (6th ed)
Commercial speech:
Devore and Sack, Advertising and Commercial Speech (2005) quoting Pittsburg
Press v. Pittsburg Commission on Human Relations (1973) and Central
Hudson G&E v. PSC (1980)
Kasky v. Nike, Inc. 27
Cal.4th 939 (2002)
Does the First Amendment Protect Commercial Speech?
- Such men as Thomas Paine, John Milton and Thomas Jefferson were not fighting for the right to peddle commercial advertising [J. Frank, 2nd Crt.,( 1941)]
- The First Amendment does not "apply to a merchant who goes door-to-door selling pots." [H. Black (1951)]
- Commercial speech has a "limited measure of [constitutional [protection] commensurate with its subordinate position in the scale of first amendment values." [Powell, Ohralik v Ohio Bar (1978)]
- "Commercial speech, the offspring of economic self-interest, is a hardy breed of expression that is not 'particularly susceptible to being crushed by overbroad regulation." [Powell, Central Hudson (1980)]
- "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...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.[Stevens in Liquormart 44 (1996) quotingVirginia Pharmacy (1976).]
- [T]he special nature of commercial speech, including its "greater objectivity" and "greater hardiness," authorizes the State to regulate potentially deceptive or overreaching advertising more freely than other forms of protected speech... and requires less than strict review of such regulations...However, regulations that entirely suppress commercial speech in order to pursue a policy not related to consumer protection must be reviewed with "special care," and such blanket bans should not be approved unless the speech itself was flawed in some way, either because it was deceptive or related to unlawful activity. [Stevens, Liquormart 44 (1996)]
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