Timeline of commercial speech cases
Prepared by S.M. Oliva
1942: Valentine v. Chrestensen. The first “commercial speech” case involved a challenge to New York City’s sanitary code, which banned the distribution of commercial handbills on city-owned streets. To get around this ban, a man printed a political message on one side of a handbill to protect the commercial message on the other side. The city prosecuted him anyway, and the Supreme Court ruled in favor of the city, holding that the handbill ban did not violate the First Amendment. Writing for the Court, Justice Owen Roberts included a line that served as the foundation of the commercial speech doctrine: “We are . . . clear that the Constitution imposes no . . . restraint on government as respects purely commercial advertising.”
1975: Bigelow v. Virginia. Three years after legalizing abortion in Roe v. Wade, the Court took up this challenge to Virginia’s ban on advertising abortion services. Relying on the 1942 Valentine ruling, the Virginia Supreme Court upheld the advertising ban. The Supreme Court, however, reversed that decision and held the presence of “commercial aspects” in advertising “does not negate all First Amendment guarantees.” In a dissenting opinion, Justice William Rehnquist said the law was valid because Virginia maintained an interest in preventing the “exploitation” of women who might be unduly influenced by advertising for abortion services.
1976: Virginia Board of Pharmacy v. Virginia Citizens Consumers Council. This case involved another Virginia law, this one banning pharmacists from advertising the prices of consumer drugs. The Court declared the law unconstitutional. Justice Harry Blackmun, who authored the Bigelow opinion, also spoke for the Court in this case. Blackmun declared that the process of speech was protected even in commercial contexts: “Freedom of speech presupposes a willing speaker. But where a speaker exists, as is the case here, the protection afforded is to the communication, to its source and to its recipients both.”
The Court rejected the “highly paternalistic approach” of Virginia’s regulation, and presented a contrasting viewpoint:
That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. If they are truly open, nothing prevents the "professional" pharmacist from marketing his own assertedly superior product, and contrasting it with that of the low-cost, high-volume prescription drug retailer. But the choice among these alternative approaches is not ours to make or the Virginia General Assembly's. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us. Virginia is free to require whatever professional standards it wishes of its pharmacists; it may subsidize them or protect them from competition in other ways. Cf. Parker v. Brown, 317 U.S. 341 (1943). But it may not do so by keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering. In this sense, the justifications Virginia has offered for suppressing the flow of prescription drug price information, far from persuading us that the flow is not protected by the First Amendment, have reinforced our view that it is.
1980: Central Hudson Gas & Electric Co. v. Public Service Commission. A government-regulated utility sued the state of New York over a ban on advertising electricity use. The Court held the ban was unconstitutional, and in doing so imposed a four-part test for deciding whether commercial speech received First Amendment protection. First, speech that was false or misleading received no constitutional protection. If the speech is true, however, the state may still regulate it if there’s a “substantial” governmental interest involved. In this context, commercial speech may be regulated if (1) the state directly advances its interest through the regulation and (2) the restriction is narrowly tailored to meet the interest.
1983: Bolger v. Youngs Drug Product Corp. This case dealt with a federal law banning the mailing of unsolicited advertisements for contraceptives. The ban applied only when the mailer had a “commercial” interest in the mailing, rather than a general interest in providing information about contraception. Youngs, a contraception products manufacturer, sued to protect their right to mail pamphlets discussing contraception use that included specific solicitations for Youngs products. The Court held the federal ban unconstitutional as it related to Youngs’ advertising. The Court expanded upon the Central Hudson test by creating additional guidelines for deciding whether speech was “commercial” or “noncommercial.” This test includes assessing a combination of three factors: (1) use of advertising format, (2) reference to a specific product, and (3) the speaker’s economic motivation. The Court did not say how many of these factors must be present, however, or to what extent each must be present in order to label speech “commercial.”
1996: 44 Liquormart/Peoples Super Liquor Stores v. Rhode Island. In 1956, Rhode Island banned the advertising of liquor prices. The state maintained the ban, in part, to discourage liquor consumption. A unanimous Court held the ban unconstitutional, however, finding the law ran afoul of the Central Hudson test. The majority found there was no established state interest in denying consumers information about a legal product. Justice Thomas, in a concurring opinion, argued that Central Hudson should be overruled, since the commercial speech doctrine itself has no “philosophical or historical basis” in the Constitution.
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