Commercial Speech
Commercial speech is the First Amendment's middle child.
18. Free Speech: Commercial Speech
Commercial speech is “lesser valued” speech, government restriction of which is subjected to intermediate scrutiny. 23
- Commercial speech has been defined as speech that “does ‘no more than propose a commercial transaction’” and as “expression related solely to the economic interests of the speaker and its audience.” Va. State Bd. of Pharm., 425 U.S. at 748, 762 (1976); Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 561 (1980).
- Because the First Amendment protection for commercial speech is based on the informational value of advertising, commercial speech that is misleading or related to illegal activity receives no First Amendment protection.
- To be permissible, government regulation of protected commercial speech must survive intermediate scrutiny, meaning that the government must prove that its interest is “substantial,” that the regulation “directly advances” that interest, and that the regulation is “not more extensive than is necessary to serve that interest.” Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).
- Under this intermediate scrutiny, the government regulation need not be the least restrictive means to achieve its objective; instead, there must be a reasonable fit between means and ends, with the means “narrowly tailored to achieve the desired result.” Board of Trustees v. Fox, 492 U.S. 469, 480 (1989).
Commercial speech runs through two gates. First, misleading or illegal-activity commercial speech gets no protection and may simply be banned. Second, truthful, lawful commercial speech is protected, and a regulation of it must survive intermediate scrutiny.
Commercial speech is the First Amendment's middle child. It gets protection, but less of it, and the whole reason it gets any protection at all is the information it carries to consumers. Hold onto that idea, because it explains every rule that follows. Commercial speech is speech that does no more than propose a commercial transaction, or expression that relates solely to the economic interests of the speaker and its audience. Advertising is the classic example.
Because the protection is built on the informational value of advertising, two kinds of commercial speech carry no informational value worth protecting, and so they get no First Amendment protection at all: commercial speech that is misleading, and commercial speech that relates to illegal activity. That is the first gate. If the speech is misleading or proposes an illegal transaction, the government may simply ban it; no scrutiny is needed, because there is nothing to protect. If the speech is truthful and concerns a lawful activity, it is protected, and now the second gate opens: the government's regulation must survive intermediate scrutiny.
- 1The government's interest must be substantial.
- 2The regulation must directly advance that interest.
- 3The regulation must be not more extensive than is necessary to serve that interest.
The single most important feature of that third requirement is what it does not demand. The regulation need not be the least restrictive means available. Instead, there must be a reasonable fit between the means and the ends, with the means narrowly tailored to achieve the desired result.
The two places people go wrong are predictable. They either treat truthful, lawful commercial speech as unprotected, or they ratchet the standard up, demanding strict scrutiny or a least-restrictive-means showing that the rule expressly rejects.
Two gates.
Gate one: is the speech misleading or about illegal activity?
If yes, no protection, and the government may ban it without any scrutiny.
If no (truthful and lawful), pass to gate two: intermediate scrutiny, three parts.
Substantial interest; directly advances; not more extensive than necessary (a reasonable fit, narrowly tailored, not least restrictive means).
The two reliable traps both involve the standard: an answer that calls for strict scrutiny, and an answer that demands the least restrictive means.
Both overstate the test.
truthful, lawful commercial speech gets intermediate scrutiny and only a reasonable fit, never the least restrictive means.
A state agency, worried that consumers overpay for prescription drugs, adopts a rule forbidding a pharmacy from advertising the prices it charges for prescription medicines. The price information the pharmacy wants to publish is entirely truthful, and selling the medicines is perfectly lawful. A pharmacy challenges the rule under the First Amendment.
Suppose the prices the pharmacy wants to advertise are deceptive, designed to mislead consumers about the true cost. That speech is misleading commercial speech, which receives no First Amendment protection, and the agency may prohibit it outright without satisfying any level of scrutiny.
An option that demands the regulation be the least restrictive means, or that raises the test to strict scrutiny or drops it to a legitimate-interest standard.
Protected commercial speech gets intermediate scrutiny, and the means need not be the least restrictive; a reasonable fit, narrowly tailored, with a substantial interest directly advanced, is the standard.A sympathetic option resting on the fact that the speech is merely commercial, or an advertisement, or that the underlying product is lawful, as if that alone decides the case.
Truthful, lawful commercial speech is protected; being commercial lowers the level of scrutiny but does not remove protection, and a lawful product does not save a misleading advertisement.An option that applies strict scrutiny, rational basis, or a fully-protected-speech analysis to commercial speech.
The tested standard for protected commercial speech is intermediate scrutiny, not strict scrutiny and not rational basis.An absolute option saying commercial speech is never protected, or that the state may never restrict truthful advertising.
Commercial speech is lesser-valued but protected when truthful and lawful, and unprotected only when misleading or tied to illegal activity; the state may regulate protected commercial speech if it survives intermediate scrutiny.An option that runs the intermediate-scrutiny analysis on speech that is misleading or about illegal activity.
That speech fails at the threshold and receives no protection, so no level of scrutiny is reached; the government may ban it outright.the stem hands you the government restricting an advertisement, a price posting, a billboard, a solicitation, or any expression that proposes a transaction or speaks only to the economic interests of a speaker and its audience.
The instant you see government regulating commercial speech, run the two-gate check.
Gate one: is the speech misleading or about illegal activity?
If yes, it gets no protection and the government may ban it, so any answer applying a scrutiny test is wrong.
If the speech is truthful and lawful, pass to gate two: intermediate scrutiny (substantial interest, directly advances, not more extensive than necessary).
At gate two, the decisive tell is the standard: eliminate any option that demands strict scrutiny or the least restrictive means, because the rule rejects both and asks only for a reasonable fit.
A state agency concerned that consumers were paying too much for prescription drugs adopted a rule that barred a pharmacy from advertising the prices it charged for prescription medicines. The prices a particular pharmacy wished to publish were entirely accurate, and selling the medicines was lawful in the state. The pharmacy sued, arguing that the rule violated the First Amendment because it suppressed truthful information about a lawful product. The agency defended the rule as a way to protect consumers.
Under existing precedent, how should a court evaluate the agency's rule?
A city enacted an ordinance prohibiting any advertisement that promotes the sale of a recreational drug whose sale is a crime under state law. A storefront ran printed advertisements offering that very drug for sale to the public. The advertisements were accurate about the price and the product, but the underlying sale was illegal in the state. The storefront was cited under the ordinance and argued that the city had to satisfy intermediate scrutiny before it could suppress the advertisements.
Is the storefront's argument that the city must satisfy intermediate scrutiny correct?
A state adopted a regulation requiring a billboard company to remove any billboard advertising alcoholic beverages within a fixed distance of a public school, finding that the rule served the state's interest in reducing underage drinking. The advertisements were truthful and concerned a lawful product. A billboard company conceded that the state's interest was substantial and that the rule directly advanced that interest, but it argued that the rule was invalid because the state could have run public-education campaigns instead, which would have burdened less speech.
Under existing precedent, does the availability of a less burdensome alternative make the regulation invalid?
An advertiser placed online advertisements for an investment product. The advertisements omitted key terms and were structured to give a deceptive impression of the product's risk and return, so that consumers were likely to be misled about what they were buying. A state agency moved to prohibit the advertisements. The advertiser argued that the agency could not act unless it first proved a substantial interest and showed that the prohibition directly advanced that interest and was not more extensive than necessary.
Is the advertiser correct that the agency must satisfy that showing before it may prohibit the advertisements?
A state agency banned a category of truthful advertisements for a lawful service, asserting a general interest in reducing demand for the service. In the litigation that followed, the agency conceded that it could not show its asserted interest was anything more than minor and speculative, and it offered no evidence that the ban actually reduced demand. A provider of the service challenged the ban under the First Amendment.
Under existing precedent, is the ban likely to be upheld?