An overview of U.S. Supreme Court opinions regarding First Amendment protection for commercial speech.

Valentine v. Chrestensen (1942): U.S. Supreme Court said advertising received NO First Amendment protection.

Owner of a submarine tourist attraction in New York was prohibited from distributing advertising handbills on street. He could distribute only handbills "devoted solely to "information or a public protest." So he revised leaflet to remove admission fee and other side protested city dock refusal to let sub dock.

U.S. Supreme Court believed his claim for First Amendment protection was merely a ploy to avoid a lawful regulation of New York City.

Times v. Sullivan (1964): The U.S. Supreme Court said a paid political ad (editorial advertisement) did receive protection under the First Amendment.

Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, (1973): The U.S. Supreme Court suggested it might give constitutional protection to "an ordinary commercial proposal." However, the Court upheld a city ordinance barring sex-specific help wanted ads.

The Human Relations Commission ordered newspaper to stop classifying its employment ads as male or female interest. Newspaper contended that classifying job openings was an editorial decision protected by the First Amendment.

The U.S. Supreme Court said the classified ads were commercial speech promoting an illegal form of discrimination. Possible First Amendment considerations were secondary to the city’s right to outlaw ads for illegal commercial activity. (Not entitled to First Amendment protection not because it was commercial speech, but because it’s for illegal commercial activity.)

Bigelow v. Virginia, (1975): The U.S. Supreme Court said the First Amendment protects an ad containing factual material of clear public interest and promoting a legal activity.

Virginia newspaper ran ad for abortion service in New York. Abortion was illegal in Virginia but legal in New York. Newspaper official was prosecuted for violating Virginia law that banned ads for abortion.

U.S. Supreme Court emphasized that service was not illegal in New York. Readers had First Amendment right to receive the information. The Court said the message didn’t automatically lose First Amendment protection because it appeared in a form of advertisement. The government needed a "substantial state interest" to justify banning commercial speech for legitimate purpose.

Virginia State Board of Pharmacy v. Virginia Citizens Council, (1976): The U.S. Court recognized that purely commercial speech receives qualified First Amendment protection. However, ads that are false, misleading, or promote illegal products or services receive no First Amendment protection. The Court overturned its decision in Valentine and gave qualified protection to commercial speech.

The Pharmacy Board contended competition would cause pharmacists to act less professionally. They shouldn't be spending time advertising but taking care of customers. Not a matter of cost, but of whom you should trust. You shouldn’t be comparison shopping, but trust the professional to do the best for you.

The U.S. Supreme Court overturned the ban on advertising drug prices. The Court emphasized the right of consumers to receive information. Prices were important. The free flow of information is protected by the First Amendment.

Central Hudson Gas & Electric Co. v. Public Service Commission of New York, (1980): The U.S. Supreme Court articulated the Central Hudson test, which is still used today.

Central Hudson challenged N.Y. Public Service Commission's ban on ads that might encourage energy use. The state supreme court said the ban on pro-consumption ads was justified because the need to conserve outweighed the slight free speech issue.

The U.S. Supreme Court said the ban on promotional ads would have only a "highly speculative" effect on energy consumption or utility rates, so a total ban was going too far.

SUNY v. Fox (1989): The U.S. Supreme Court altered the 4th part of the Central Hudson Test to merely require a "reasonable fit" between the regulation and what the government is trying to accomplish.

The school banned commercial activity in dorms. The college wanted to prevent commercial exploitation of students and create an educational atmosphere.

The U.S. Supreme Court said the ban was a "reasonable fit" with the school’s goal.

Posadas de Puerto Rico v. Puerto Rican Tourism Co., (1986): Using the Central Hudson test, the U.S. Supreme Court upheld a ban on advertisements for a legal activity.

To encourage tourism, Puerto Rico had legalized gambling but restricted advertising to outside of the territory. The ban even prohibited using the word "casino" in matchbooks, lighters, envelopes, napkins, menus, brochures.

The U.S. Supreme Court applied the Central Hudson test so weakly that Puerto Rico's ban on casino advertising passed muster. The opinion reasoned that the "greater power includes the lesser." In other words, if the government has the power to ban a product, it can ban advertising for the product. So if the state has the power to ban casino gambling, it has the lesser power to ban advertising of casino gambling.

Rubin v. Coors (1995): The U.S. Court struck down a federal law prohibiting the display of the alcohol content of beer on beer labels.

The law was designed to prevent "strength wars." However, the U.S. Supreme Court said the Ban failed parts 2,3 and 4 of the Central Hudson test.

Part (2) Substantial government interest in protecting health, safety and welfare of public by avoiding a "strength war" that could lead to more alcoholism. HOWEVER, additional federal interest in helping facilitate state efforts to regulate alcohol under 21st Amendment was not substantial. The federal government doesn't have such authority and hadn't shown that states needed that help.

Part (3) The regulation did not advance the government's interest because other regulations undermined it by allowing the marketing of "malt liquors" and requiring alcohol content on wine and spirits. The regulation being challenged actually hindered people who want low-alcohol content beer.

Part (4) The regulation was overbroad because other alternatives -- i.e., regulating alcohol content -- would be less intrusive on First Amendment protection for commercial speech.

44 Liquormart, Inc. v. Rhode Island (1996): The U.S. Supreme Court struck down a Rhode Island law banning retail liquor price advertising, except at the point of sale.

Justice Stevens wrote the majority opinion and recounted the key role advertising has played throughout U.S. history, saying that even in colonial days the public relied on ``commercial speech'' for vital information. He said Rhode Island's power to ban the sale of liquor entirely does not include a power to censor all advertisements that contain accurate and non-misleading information about the price of the product. The state has other less restrictive ways available to discourage drinking such as increased taxes on alcohol or direct regulation resulting in higher prices. "Even educational campaigns focused on the problems of excessive or even moderate drinking might prove to be more effective," Stevens wrote.

The Court decision was unanimous, but the majority opinion and concurring opinions split four ways on the legal rationale. Some experts believe it will mean even more instability in this area.

For example, in the majority opinion, which drew four votes, Stevens said the Posadas decision was wrong. However, Justice O'Connor's concurrence, which drew three votes, was less hostile to the Posadas decision.

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