The question is often asked: Does the First Amendment protect advertisements? Advertising is indeed protected by the First Amendment
of the U.S. Constitution. However, advertising or "commercial speech" enjoys somewhat less First Amendment protection from governmental encroachment than other types of speech. The Federal Trade Commission (FTC), for example, may regulate speech that is found to be "deceptive." And the FTC keeps stepping up the types of commercial speech it regulates. Moreover, it uses a variety of tools to do so, but that is a discussion for another article.
Under the landmark U.S. Supreme Court decision, Central Hudson Gas & Electric Corp.
v. Public Service Commission of New York, No. 79-565, Supreme Court
of the United States, 447 U.S. 557; 100 S. Ct. 2343; 1980 U.S. LEXIS 48; 65 L. Ed. 2d 341; 6 Media L. Rep. 1497; 34 P.U.R.4th 178, June 20, 1980, a state must justify restrictions on truthful, nonmisleading commercial speech by demonstrating that its actions "directly advance" a substantial state interest and are no more extensive than necessary to serve that interest. This is the so-called Central Hudson Test.
Commercial speech now clearly has prominent place in the rights protected by the First Amendment. A 1993 Supreme Court opinion summarized the general principles underlying the protection of commercial speech:
"The commercial market place, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment." (Edenfield v. Fane
, 123 L. Ed. 2d 543, 113 S. Ct. 1792, 1798 (1993).)
At one time, purely commercial advertisements were considered to be outside the First Amendment's protection. (See Valentine v. Chrestensen, 316 U.S. 52, 54, 86 L. Ed. 1262, 62 S. Ct. 920 (1942). That case, which was overruled, said the Constitution imposes no restraint on the government as to the regulation of "purely commercial advertising".
While the U.S. Supreme Court has often acknowledged this constitutional protection, the Supreme Court's decisions have recognized the "'common sense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." (Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-56, 56 L. Ed. 2d 444, 98 S. Ct. 1912 (1978) (citing Virginia Pharmacy Bd. v. Citizens Consumer Council, 425 U.S. 748, 771 n.24, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976)).
These distinctions have led the Court to conclude that "the Constitution . . . affords a lesser protection to commercial speech than to other constitutionally guaranteed expression." U.S. v. Edge Broadcasting Co., 125 L. Ed. 2d 345, 61 U.S.L.W. 4759, 4761 (1993) (citing Board of Trustees v. Fox, 492 U.S. 469, 477, 106 L. Ed. 2d 388, 109 S. Ct. 3028 (1989), Central Hudson Gas & Electric Corp. v. Public Service Com.
, 447 U.S. 557, 563, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980), and Ohralik, 436 U.S. at 456)).
In Central Hudson, the Supreme Court set out the important four-part test for assessing government restrictions on commercial speech:
"[First] . . . [the commercial speech] at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest."
This four-part analysis endured to this day as the constitutional benchmark in commercial speech cases.
In 44 Liquormart, Inc. v. Rhode Island
, 517 U.S. 484, the U.S. Supreme Court held that "the Twenty-first Amendment does not qualify the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment. The Twenty-first Amendment, therefore, cannot save Rhode Island's ban on liquor price advertising."