Commercial Speech

Question 1

What is commercial speech?

Answer 1

Speech that merely proposes a commercial transaction

Question 2

Virginia Pharmacy

Answer 2

Rule = Commercial speech (including paid advertisement) is protected by the First Amendment

Case stands for the proposition that → mind control is not allowed, gov’t is not allowed to keep certain ideas away from ppl just because they believe that the response to the speech will be negative

Question 3

Standard of review?

Answer 3

Intermediate scrutiny?

Question 4

Why does commercial speech get intermediate scrutiny?

Answer 4

Court is saying that sometimes gov’t CAN regulate commercial speech.

When? Use Central Hudson 4 part test

Question 5

Central Hudson 4 Part Test – 1st Prong

Answer 5

Whether the speech is misleading or related to unlawful activity

(a) If yes (false or misleading), then the commercial speech isn’t protected by the First Amendment so the state gets to regulate
(b) If no (truthful and non-misleading), the speech is protected and 4 part analysis comes into play

Question 6

Central Hudson 4 Part Test – 2nd Prong

Answer 6

ii. Whether the regulation is supported by a substantial governmental interest

Question 7

Central Hudson 4 Part Test – 3rd Prong

Answer 7

iii. Whether the regulation directly advances the gov’t interest

Question 8

Central Hudson 4 Part Test – 4th Prong

Answer 8

iv. Whether the interest could be achieved by a less burdensome restriction on commercial speech
(a) This prong can be satisfied by a rule that is tailored to its objective, even if it s not the least restrictive means

Question 9

When mixing commercial and non-commercial speech?

Answer 9

The speech will be treated as commercial speech

Question 10

Casinos and gambling

Answer 10

Posadas de Puerto Rico Assoc. v.Tourism Company of Puerto Rico

i. Puerto Rico law prohibited gambling casinos from advertising their facilities to residents of PR, but not to tourists
ii. Gov’t interest = interest in promoting toursism and deterring local demand for gambling
iii. HOLDING = Law was upheld, because Court determined the gov’t had a substantial health, safety, and welfare interest – PR’s restrictions on advertising was a reasonable fit to the interests

Question 11

Paternalist regulation of commercial speech

Answer 11

will always fail Hudson test