Chapter 8: Commercial Speech Flashcards
Valentine v. Chrestensen
Facts: Chrestenson is convicted for distributing leaflets about his traveling submarine exhibit and his disdain for New York’s ban on commercial advertisement
Decision: SCOTUS rules in favor of NY
Significance: commercial speech is NOT protected by the first amendment
Bigelow v. Virginia
Facts: Bigelow is convicted under a Virginia law that criminalizes abortion advertisements when he publishes an advertisement for a NY-based clinic in his VA paper
Decision: SCOTUS sides with Bigelow
Significance: Chrestensen is overturned and commercial speech is given constitutional protection
Deceptive Advertising
FTC: a representation, omission, or practice that is likely to mislead the consumer
Virginia State Board of Pharmacy v. Virginia Citizens’ Council
Facts: The citizens’ council challenges a VA law that prohibits pharmacists from advertising the price of prescription drugs (limits competition)
Decision: SCOTUS rules in favor of the citizens. (1) Commercial speech = political speech in a capitalist society (2) The free flow of information allows consumers to act in their own self-interests (reject paternalism)
Two Caveats: (1) advertised products must be legal (2) the advertisement must not be deceptive
Significance: Upholds Bigelow but narrows the scope of protection
Bates v. State Bar of Arizona
Facts: Bates and his partner lose their licenses because the Arizona Bar Association prevents attorneys from advertising their services
Decision: SCOTUS sides with Bates because the services advertised were legal and the ad was not deceptive
Significance: Establishes that professionals have the right to advertise their services
Ohralik v. Ohio State Bar Association
Facts: Ohralik is reprimanded by the Ohio Bar for approaching two accident victims and advertising his services to them
Decision: SCOTUS sides with the Ohio Bar Association
Significance: establishes that face-to-face, individual solicitation of professional services is not protected
Linmark Associates v. Town of Willingboro
Facts: Linmark Associates challenges a Willingboro ordinance that bans commercial real estate signs in an attempt to prevent blockbusting
Decision: SCOTUS sides with Linmark
Significance: commercial signs become a protected form of speech
Central Hudson Gas and Electric v. Public Service Commission
Facts: Central Hudson Gas and Electric challenges a New York law that prevents all advertising for electricity during the oil embargo
Decision: SCOTUS sides with Central Hudson and creates the Central Hudson test for determining when commercial speech can be regulated
Significance:
Central Hudson Test
1. To qualify for protection the speech must concern lawful activity and not be deceptive
2. To regulate speech, the government must have a substantial interest
3. the regulation must directly advance the governmental interest
4. The regulation cannot be more broad than necessary
Board of Trustees of SUNY v. Fox
Facts: A group of students wants to host a Tupperware party so they challenge a university rule that prevents commercial enterprises from operating in school facilities
Decision: SCOTUS sides with SUNY because the rule passes the Central Hudson Test
Significance: Changes the 4th prong of Central Hudson to require a “reasonable fit” rather than the “least restrictive means”
Cincinnati v. Discovery
Facts: Discovery network sues Cincinnati over a decision to remove free newsstands in an attempt to reduce litter
Decision: SCOTUS sides with Discovery Network because only 62 of the 1,500 - 2,000 racks in the city were removed
Significance: The rule is unconstitutional because it fails the “reasonable fit” test of Central Hudson
44 Liquormart v. Rhode Island Stores Association
Facts: 44 Liquormart is fined for violating a RI law that bans the advertisement of low alcohol prices to curb drinking
Decision: SCOTUS rules in favor of 44 Liquormart because there are other ways to curb drinking without limiting speech
Significance: The rule is unconstitutional because it fails the “reasonable fit” test of Central Hudson
Lorillard Tobacco v. Reily
Facts: Lorillard challenges a Massachusetts law that bans tobacco advertising within 1000 ft of any elementary school, playground, or park in an attempt to prevent advertising to children
Decision: SCOTUS rules that the law is unconstitutional because it constitutes nearly a full ban in some areas
Significance: The rule is unconstitutional because it fails the “reasonable fit” test of Central Hudson
