COMMERCIAL SPEECH

The "proposing of commercial activity (buying and selling) to consumers."

IS COMMERCIAL SPEECH PROTECTED UNDER THE FIRST AMENDMENT?

• 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]

VALENTINE v CHRESTENSEN (USSC 1942)

• NYC Handbill Ordinance:
  "[T]he Constitution imposes no...restraint on government as respects purely commercial speech.

PITTSBURG PRESS v PITTSBURG COMM. (USSC 1973)

• CITY ORD. BANNED MALE/FEMALE HELP WANTED ADS.
  
  
• COMMERCIAL SPEECH IS PROTECTED BY FIRST AMENDMENT, BUT THE STATE MAY REGULATE COMMERCIAL SPEECH WHEN:

• Advertised Activity is illegal.
• The regulations are incidental to valid limitations on economic activity.

BIGELOW v VIRGINIA (USSC 1975)

• ADVERTISING OF LEGAL ABORTION SERVICES.
• The Court found that the "clear public interest" in the advertised information outweighed the state's interest in regulation.

VIRGINIA ST. BD. OF PHARMACY v VIRGINIA CONSUMER COUNCIL (USSC 1976)

• STATE ORD BANNED DRUG PRICE ADVERTISING

LINMARK ASSOC. v CITY OF WILLINGBORO (USSC 1977)

• CITY ORD. BANNED ON-SITE HOUSE FOR SALE SIGNS.

CAREY v. POPULATION SERVICES INT'L (USSC 1977)

• NY STATE STATUTE BANNED CONTRACEPTIVE ADS.

BATES v STATE BAR OF ARIZONA (USSC 1977)

• STATE BAN ON ALL LAWYER ADVERTISING.

See Central Hudson page

• 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 has first amendment protection because accurate information about lawful products and services is of value to consumers.
  
  
• The content of commercial speech and the time, place and manner of presentation may be regulated when the government has shown a legitimate interest in the regulation.
  
  
• "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]
  
  
• [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, 1996]