Attorney Advertising
Commercial Speech Regulation
Commercial speech is NOT subject to the same First Amendment protections as political speech. The states may regulate commercial speech if:
The restriction directly advances the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose.
If the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.
Finally, the First Amendment mandates that speech restrictions be narrowly drawn.
Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 477 U.S. 557, 564-65 (1980). The court goes on to apply a four part analysis to advertising restrictions:
Determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading.
Determine whether the asserted governmental interest is substantial.
If both inquiries yield positive answers, determine whether the regulation directly advances the governmental interest asserted, and finally,
Determine whether it is more extensive than is necessary to serve that interest.
Central Hudson, 477 U.S. at 566 (emphasis added). Finally, Central Hudson holds that blanket prohibitions must not be narrowly drawn. Id. at 566 n.9. Other cases address specific examples of improper blanket bans. See e.g., Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 773 (1976) (holding that a blanket ban on advertising the price of prescription drugs violated the First Amendment); Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (holding that a blanket prohibition against truthful, non misleading liquor price advertising was unconstitutional).
Therefore, although commercial speech can be regulated, such regulation requires a substantial governmental interest for the regulation to withstand First Amendment analysis. The court will review regulations on commercial advertising using an "intermediate scrutiny" standard. The Florida Bar v. Went For It, 515 U.S. 618, 623 (1995).
For more information about advertising and commercial speech, see P. Cameron DeVore and Robert D. Sack, Advertising and Commercial Speech, 498 PLI/Pat 655 (1997) (giving a lengthy and thorough review of advertising and commercial speech and First Amendment issues in the course handbook series).
Home | Table of Contents | Search
NOTHING IN THIS PRESENTATION REPRESENTS LEGAL ADVICE, AND NO ATTORNEY-CLIENT RELATIONSHIP IS IMPLIED BY ANYTHING ON THIS SITE.
This page developed by Robert F. Bodi
for a Cyberlaw class at The
University of Akron - School
of Law
This page hosted by CleveNet; Original
material copyright © 1998 by Robert F. Bodi. All rights reserved. The views and opinions expressed in this page are strictly
those of the page author. Information in
this document is subject to change without notice, and no guarantee of accuracy is given
nor implied. Other products and companies referred to herein are trademarks or registered
trademarks of their respective companies or mark holders. Cases cited in this document are
public domain. Links to other web sites are unique works and not the property of
Robert F. Bodi, and he is not responsible for their content. None of the links are
used by permission. This page last updated on Friday, November 20, 1998
The material appearing in this Web site is for information purposes only and are not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel. The information provided in this Web site is provided only as general information which may or may not reflect the most current legal developments. This Web site is not intended to be advertising and we do not wish to represent anyone desiring representation based upon viewing this Web site in a state where this Web site fails to comply with all laws and ethical rules of that state.
