| rdfs:comment | - “The Constitution . . . affords a lesser protection to commercial speech than to other constitutionally guaranteed expression.” Commercial speech is “speech that proposes a commercial transaction.” That books and films are published and sold for profit does not make them commercial speech; i.e., it does not “prevent them from being a form of expression whose liberty is safeguarded [to the maximum extent] by the First Amendment.” Commercial speech, however, may be banned if it is false or misleading, or if it advertises an illegal product or service. Even if fits in none of these categories, the government may regulate it more than it may regulate fully protected speech.
- Commercial Speech is speech done on behalf of a company or individual for the intent of making a profit. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product. The idea of "Commercial Speech" was first introduced by the Supreme Court when it upheld Valentine v. Chrestensen (1942). In upholding the regulation, the Supreme Court said, "We are … clear that the Constitution imposes … no restraint on government as respects purely commercial advertising."
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| abstract | - Commercial Speech is speech done on behalf of a company or individual for the intent of making a profit. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product. The idea of "Commercial Speech" was first introduced by the Supreme Court when it upheld Valentine v. Chrestensen (1942). In upholding the regulation, the Supreme Court said, "We are … clear that the Constitution imposes … no restraint on government as respects purely commercial advertising." In a 1978 decision, Ohralik v. Ohio State Bar Ass'n, the Court offered this defense: There are those on the Supreme Court that disagree with this "common-sense" distinction, though. Justice Clarence Thomas replied, in 44 Liquormart, Inc. v. Rhode Island (1996), that "I do not see a philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech." Federal judge Alex Kozinski stated, in regards to the 1942 ruling, "the Supreme Court plucked the commercial speech doctrine out of thin air."
- “The Constitution . . . affords a lesser protection to commercial speech than to other constitutionally guaranteed expression.” Commercial speech is “speech that proposes a commercial transaction.” That books and films are published and sold for profit does not make them commercial speech; i.e., it does not “prevent them from being a form of expression whose liberty is safeguarded [to the maximum extent] by the First Amendment.” Commercial speech, however, may be banned if it is false or misleading, or if it advertises an illegal product or service. Even if fits in none of these categories, the government may regulate it more than it may regulate fully protected speech. The Supreme Court has prescribed the four-prong Central Hudson test to determine whether a governmental regulation of commercial speech is constitutional. This test asks initially (1) whether the commercial speech at issue is protected by the First Amendment (that is, whether it concerns a lawful activity and is not misleading) and (2) whether the asserted governmental interest in restricting it is substantial. “If both inquiries yield positive answers,” then to be constitutional the restriction must (3) “directly advance[ ] the governmental interest asserted,” and (4) be “not more extensive than is necessary to serve that interest.” The Supreme Court has held that, in applying the third prong of the Central Hudson test, the courts should consider whether the regulation, in its general application, directly advances the governmental interest asserted. If it does, then it need not advance the governmental interest as applied to the particular person or entity challenging it. Its application to the particular person or entity challenging it is relevant in applying the fourth Central Hudson factor, although this factor too is to be viewed in terms of “the relation it bears to the overall problem the government seeks to correct.” The fourth prong is not to be interpreted “strictly” to require the legislature to use the “least restrictive means” available to accomplish its purpose. Instead, the Court has held, legislation regulating commercial speech satisfies the fourth prong if there is a reasonable “fit” between the legislature’s ends and the means chosen to accomplish those ends. The Supreme Court has applied the Central Hudson test in all the commercial speech cases it has decided since Central Hudson, and this article discusses the ten most recent court decisions in chronological order. In nine of these cases, the Court struck down the challenged speech restriction; it has not upheld a commercial speech restriction since 1993. In its most recent commercial speech case, Thompson v. Western States Medical Center,the Court noted that “several Members of the Court have expressed doubts about the Central Hudson analysis and whether it should apply in particular cases.” These justices believe that the test does not provide adequate protection to commercial speech, but the Court has found it unnecessary to consider whether to abandon the test, because it has been striking down the statutes in question anyway.
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