Commercial speech is a form of protected communication under the First Amendment, but it does not receive as much free speech protection as forms of noncommercial speech, such as political speech.
One important test developed by the Court to determine protection for commercial speech is the Central Hudson test. With this test, courts determine how far the regulation of commercial speech can go before it runs afoul of the First Amendment.
If the speech is fraudulent or illegal, the government can freely regulate it without First Amendment constraints. If it is not, then the court must ask whether the asserted governmental interest is substantial. If both questions are answered yes, the court must determine whether the regulation directly advances the governmental interest asserted and whether it is more extensive than is necessary to serve that interest. If the regulation is narrowly tailored to secure the interest, then the regulation of the commercial speech will be upheld.
Following are several Supreme Court cases in which commercial speech under the First Amendment was at issue.
44 Liquormart v. Rhode Island (1996) advanced First Amendment protections
for commercial speech when it struck down a state law banning the
advertising of alcohol prices.
The Supreme Court on July 6, 2020, struck down a provision in a robocall
law that allowed government to use robocalls to collect debt, saying it was
an impermissible speech discrimination under the First Amendment. The Court
in Barr v. American Association of Political Consultants found the rule a
content-based exception.
Bigelow v. Virginia (1975) involved an ad printed for an abortion clinic
and established that at least some commercial advertising should receive
First Amendment protection.
In Board of Trustees of State University of New York v. Fox (1989), the
Supreme Court said a ban on private commerce in state university facilities
was “‘narrowly tailored’” and thus valid under the First Amendment.
The Court in Borgner v. Florida Board of Dentistry (2002) declined to
review a ruling upholding a law requiring dentists to include disclaimers
in ads for unrecognized specialties.
Carey v. Population Services International (1977) struck down a law that
banned contraceptive advertising. The Court said the advertising was
protected by the First Amendment.
Central Hudson Gas and Electric Corp. v. Public Service Commission (1980)
clarified First Amendment protection of commercial speech, determining when
it could be regulated.
City of Cincinnati v. Discovery Network (1993) held that Cincinnati’s
restrictions on the distribution of commercial flyers in news racks
violated the First Amendment.
In Edenfield v. Fane (1993), the Supreme Court said direct solicitation of
clients was within the First Amendment rights of certified public
accountants.
In Friedman v. Rogers (1979), the Court struck down a First Amendment
challenge to a Texas law that prohibited optometrists from advertising
under a trade name.
In Glickman v. Wileman Brothers and Elliott, Inc., the Court held that
requiring farmers to contribute to the cost of generic advertising did not
abridge their freedom of speech.
Ibanez v. Florida Department of Business and Professional Regulation Board
(1994) held that the First Amendment takes precedence over regulatory
agencies in cases involving commercial speech.
Although parody, like satire, is generally recognized as protected speech under the First Amendment, the Supreme Court decision in Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599 U.S. ____ (2023), demonstrates that this is not always so when it comes to trademarking. The case, which was unanimously decided in an opinion written by
Linmark Associates, Inc. v. Township of Willingboro (1977) invalidated an
ordinance that limited “For Sale” signs in neighborhoods on First Amendment
grounds.
In Lorillard Tobacco Co. v. Reilly (2001), the Supreme Court invalidated
state advertising restrictions on tobacco products, saying they violated
the First Amendment.
Los Angeles Police Department v. United Reporting Publishing Co. (1999)
said banning release of arrestee information for commercial purposes didn’t
violate the First Amendment.
Nike v. Kasky (2003) raised, but did not resolve, contemporary issues
regarding First Amendment protection for corporate speech in matters of
public concern.
Pacific Gas and Electric Co. v. Public Utilities Commission (1986)
established the right of a corporation as a publisher to refuse to print
messages with which it does not agree.
Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973)
found that banning employment discrimination did not violate the First
Amendment.
The Court later reversed their stance in Posadas de Puerto Rico Associates
v. Tourism Company of Puerto Rico (1986), which dealt with First Amendment
rights of commercial speech.
Rubin v. Coors Brewing Co. (1995) said that a law restricting beer labels
from displaying alcohol content was an infringement of First Amendment
commercial speech rights.
Sorrell v. IMS (2011) invalidated a state law prohibiting the sale of
pharmacy data as an impermissible restriction on free speech guaranteed in
the First Amendment.
Tennessee Secondary School Athletic Association v. Brentwood Academy (2007)
ruled that enforcement of anti-recruiting rules did not violate the First
Amendment.
Thompson v. Western States Medical Center (2002) ruled that a federal
statutory prohibition on the advertisement of compounded drugs violated the
First Amendment.
In 2001, the Supreme Court overturned a federal program that required
mushroom producers to subsidize generic advertising for mushrooms. In
United States v. United Foods, Inc., the Court said the law was a clear
case of compelled speech and violated the First Amendment rights of the
companies.
Valentine v. Chrestensen (1942) ruled that commercial speech is not
protected by the First Amendment. It has made assessing commercial speech
under the First Amendment harder.
Village of Hoffman Estates v. Flipside (1982) upheld an ordinance
regulating the sale of drug paraphernalia against charges that it was
unconstitutionally vague and overbroad.
In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council,
Inc., the Court ruled that purely commercial speech deserves First
Amendment protection.