Advertising and Commercial Speech: Constitutional Principles

Question 1

Commercial speech

Answer 1

The Supreme Court for many years took the view that commercial speech–speech that proposes an economic transaction–was not protected by the First Amendment. The Court reasoned that the broad powers of government to regulate commerce must reasonably include the power to regulate speech concerning articles of commerce. (some protection)

Question 2

intermediate scrutiny

Answer 2

o Applies to less protected (commercial) speech
o Government actor must have a substantial reason for the regulation
o Much lower test that strict scrutiny but it is still difficult for the government to meet

Question 3

commercial speech doctrine

Answer 3

the FA does not protect either false or misleading ads or ads for unlawful goods and services. Gov may regulate if:
o Economically motivated or economically beneficial
o May be subject to greater governmental regulation (than political speech)

Question 4

Valentine v. Chrestensen

Answer 4

Valentine was a case where a man was advertising for his business and they created an ordinance saying he couldnt, the courts upheld this because at this time the courts found commercial/ad speech had no first amendment protection, its motivated by money and has higher regulations now
• The court says commercial speech gets no FA protection. Slowly, the court begins to reverse course on that notion ultimately concluding in Virginia Pharmacy v. Virginia- commercial speech is entitled to FA protection.

Question 5

Virginia State Board of Pharmacy v. Virginia Citizen Cosumer Council

Answer 5

*commercial speech is entitled to FA protection
o Government agency responsible for regulating the licensing and practice of pharmacists in Virginia prohibited the advertising of prescription drugs prices.
• narrowed the commercial-speech exception to speech that advertised an illegal product or activity and to commercial claims that could mislead or deceive the potential consumer.

Question 6

Central Hudson

Answer 6

Court established a four part test for assessing the constitutionality of restrictions on commercial speech

1. Does speech promote illegal activity or products that are misleading? If yes the regulation is constitutional. If not, then the government can regulate if it can successfully answer the final three questions
2. Does the government have a SUBSTANTIAL interest in regulating the speech
3. Does the manner in which the government actually seeks to regulate directly help the government achieve this substantial interest? Restriction must be rational to achieve objective.
4. Is the regulation no more extensive than necessary (narrowly tailored) to further the substantial government interest?

Question 7

Test in Action: 44 Liquormart vs. Rhode Island

Answer 7

• case in which the Court held that a complete ban on the advertising of alcohol prices (on the window of a store) was unconstitutional (Rhode Island wanted to ban the external advertising of alcohol)
• uphold the test:
o illegal product? No
o substantial interest? limiting people from getting drunk- No, because reducing liquor prices 20% doesn’t necessarily encourage people to get drunk (no rational substantial interest)

Question 8

What’s so different about commercial speech?

Answer 8

• Pure commercial speech is not pure; motivated by monetary desire
• Content often hyperbolic in nature designed to influence and persuade as well as inform
• Commercial speech is verifiable; should be subject to higher standard
• Commercial speech is hardy, durable