Learning Outcomes
This article outlines the constitutional principles governing the regulation of commercial speech under the First Amendment. It examines the definition of commercial speech, the level of constitutional protection it receives, the test used to evaluate regulations of truthful commercial speech (Central Hudson), and the lack of protection for false, misleading, or illegal commercial speech. After reading this article, you will be able to identify commercial speech scenarios on the MBE and apply the correct constitutional standards to determine the validity of government regulations affecting such speech.
MBE Syllabus
For the MBE, you are required to understand how the First Amendment applies to commercial speech, recognizing it receives less protection than political or other forms of speech. This includes analyzing government regulations under the appropriate constitutional test. You should be prepared to:
- Distinguish commercial speech from non-commercial speech.
- Identify the standard of review applicable to commercial speech regulations (intermediate scrutiny).
- Apply the four-part Central Hudson test to regulations of truthful, non-misleading commercial speech regarding lawful activity.
- Recognize that false, misleading, or illegal commercial speech is unprotected by the First Amendment.
- Evaluate restrictions on professional advertising (e.g., attorneys, accountants).
- Assess the validity of prior restraints on commercial speech.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which standard of review do courts typically apply to regulations of truthful, non-misleading commercial speech concerning lawful activity?
- Rational basis
- Intermediate scrutiny
- Strict scrutiny
- Minimal scrutiny
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Under the Central Hudson test, a regulation restricting truthful commercial speech is valid only if, among other requirements, it:
- Is necessary to achieve a compelling government interest.
- Is viewpoint neutral and rationally related to any legitimate government purpose.
- Directly advances a substantial government interest and is narrowly tailored to achieve that interest.
- Concerns speech that is inherently harmful to minors.
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A state law completely banning attorneys from advertising their services via television commercials would likely be found:
- Constitutional, because attorney advertising is inherently misleading.
- Constitutional, because states have broad power to regulate the legal profession.
- Unconstitutional, because the ban is broader than necessary to serve any substantial government interest.
- Unconstitutional, because commercial speech receives the same protection as political speech.
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A city ordinance prohibits businesses from displaying any outdoor signs advertising tobacco products. Assuming the sale of tobacco is legal, which is the strongest argument that this ordinance violates the First Amendment?
- Tobacco advertising is political speech subject to strict scrutiny.
- The ordinance is not narrowly tailored to serve the city's substantial interest in reducing tobacco use.
- The ordinance constitutes an impermissible prior restraint on speech.
- The ordinance violates the Equal Protection Clause by singling out tobacco advertisers.
Introduction
The First Amendment's guarantee of freedom of speech extends, to a degree, to commercial speech. Commercial speech is generally defined as speech that proposes a commercial transaction or is related solely to the economic interests of the speaker and its audience. While protected, commercial speech receives a lower level of protection than political, artistic, or other forms of non-commercial expression. This means the government has greater latitude to regulate commercial speech than other types of speech.
The key analysis involves distinguishing between (1) truthful, non-misleading commercial speech concerning lawful activity and (2) commercial speech that is false, misleading, or concerns illegal activity. The latter category receives no First Amendment protection and can be prohibited entirely. The former category receives intermediate scrutiny under the Central Hudson test.
Key Term: Commercial Speech Speech that does no more than propose a commercial transaction or that relates solely to the economic interests of the speaker and its audience.
The Central Hudson Test
Regulations affecting truthful, non-misleading commercial speech about lawful activities are evaluated under the four-part test established in Central Hudson Gas & Electric Corp. v. Public Service Commission (1980). This test essentially applies intermediate scrutiny. For a regulation of commercial speech to be upheld, the government must show that:
- The speech concerns lawful activity and is not misleading: If the speech is false, misleading, or promotes illegal activity, it is unprotected, and the regulation is likely valid (subject only to rational basis review). If it is truthful and concerns lawful activity, the analysis proceeds to the next parts.
- The asserted governmental interest is substantial: The government must identify a significant interest justifying the regulation (e.g., consumer protection, public health, safety, aesthetics).
- The regulation directly advances the asserted governmental interest: The regulation must actually help achieve the government's substantial interest. There must be a direct link between the restriction and the goal.
- The regulation is narrowly tailored: The regulation must not be more extensive than necessary to serve the government's interest. There must be a "reasonable fit" between the ends and the means chosen. This does not require the least restrictive means possible, but the regulation should be proportionate to the interest served.
Key Term: Central Hudson Test The four-part test used to determine the constitutionality of restrictions on truthful, non-misleading commercial speech about lawful activity, requiring a substantial government interest, direct advancement of that interest, and narrow tailoring.
Key Term: Intermediate Scrutiny The standard of review applied to commercial speech regulations (and certain other classifications), requiring the government to show the regulation is substantially related to an important government interest. In the commercial speech context, this is embodied by the Central Hudson test.
Worked Example 1.1
A state enacts a law prohibiting pharmacies from advertising the prices of prescription drugs. The state asserts its interest is protecting consumers from aggressive marketing that might lead to overconsumption or unwise choices regarding medication, and maintaining professionalism among pharmacists. A pharmacy challenges the law. Is the law constitutional?
Answer: Likely unconstitutional. Applying Central Hudson: (1) Price advertising for legal prescription drugs is truthful commercial speech about lawful activity. (2) The state's interests in consumer protection and professionalism may be substantial. (3) However, a complete ban on price advertising does not directly advance the interest in preventing overconsumption (it might hinder informed choices) and significantly impedes the flow of truthful information. (4) The complete ban is not narrowly tailored; less restrictive means, like regulations against misleading advertising, are available. A total ban on truthful price information is likely unconstitutional. [See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976)]
Unprotected Commercial Speech
The government has broad power to regulate commercial speech that is false, deceptive, misleading, or related to illegal activity. Such speech receives no First Amendment protection.
- False or Misleading Speech: The government may completely ban commercial speech that is false or misleading. The state's interest in preventing consumer deception is inherently substantial.
- Illegal Activity: Speech proposing an illegal transaction (e.g., advertising illegal drugs or prostitution) is unprotected and may be prohibited.
Worked Example 1.2
A city ordinance prohibits fortune tellers from advertising their services, based on the city council's determination that fortune telling is inherently fraudulent. A fortune teller challenges the ordinance on First Amendment grounds. Is the ordinance likely constitutional?
Answer: Likely constitutional. The city can regulate or ban commercial speech that is inherently misleading or fraudulent. If the city reasonably concludes that fortune telling services, as advertised, are inherently deceptive (promising outcomes based on nonexistent powers), then the advertising relates to potentially fraudulent activity. Such speech falls outside First Amendment protection, and the ban would likely survive rational basis review.
Specific Applications
Professional Advertising
Advertising by professionals (e.g., lawyers, doctors, accountants) is commercial speech. Truthful advertising about professional services is protected, but states retain significant authority to regulate to prevent deception.
- Complete Bans: Complete bans on truthful professional advertising are generally unconstitutional as overly broad. [See Bates v. State Bar of Arizona (1977) - ban on lawyer price advertising struck down]
- Misleading Advertising: States can prohibit potentially misleading advertising (e.g., unsubstantiated claims of quality, potentially confusing trade names).
- Solicitation: States may regulate or prohibit in-person solicitation by lawyers for pecuniary gain due to risks of overreaching and undue influence. [See Ohralik v. Ohio State Bar Ass'n (1978)] Targeted direct-mail solicitations may also be regulated if narrowly tailored to prevent specific harms (e.g., invasion of privacy immediately after an accident).
Prior Restraints
Prior restraints (government actions preventing speech before it occurs) are heavily disfavored. While theoretically possible for commercial speech (e.g., requiring pre-approval of advertising copy to ensure compliance with regulations), they face a heavy presumption of unconstitutionality and must include procedural safeguards. Such restraints are rare in the commercial speech context.
Exam Warning
Do not confuse the intermediate scrutiny applied to truthful commercial speech with the strict scrutiny applied to most content-based regulations of non-commercial speech. Also, remember that the government has much broader power to regulate or ban commercial speech that is false, misleading, or concerns illegal activity.
Summary
Commercial speech receives First Amendment protection, but less than non-commercial speech. Truthful, non-misleading commercial speech about lawful activity is subject to intermediate scrutiny under the Central Hudson test, requiring the regulation to serve a substantial government interest, directly advance that interest, and be narrowly tailored. False, misleading, or illegal commercial speech receives no First Amendment protection and can be banned. Regulations on professional advertising are permissible if designed to prevent deception, but complete bans on truthful advertising are generally invalid.
Key Point Checklist
This article has covered the following key knowledge points:
- Commercial speech proposes a transaction or relates to economic interests.
- It receives less First Amendment protection than political or artistic speech.
- False, misleading, or illegal commercial speech is unprotected.
- Truthful commercial speech about lawful activity gets intermediate scrutiny via the Central Hudson test.
- Central Hudson requires: (1) Lawful/Not Misleading Speech; (2) Substantial Government Interest; (3) Direct Advancement; (4) Narrow Tailoring (reasonable fit).
- Complete bans on truthful commercial speech are often unconstitutional.
- States can regulate professional advertising to prevent deception but cannot impose blanket bans on truthful ads.
- In-person solicitation by professionals can be regulated more stringently.
Key Terms and Concepts
- Commercial Speech
- Central Hudson Test
- Intermediate Scrutiny
