BOARD OF TRUSTEES OF STATE UNIVERSITY OF NEW YORK v. FOX 492 U.S. 469 (1989)

This decision significantly altered the doctrinal formula governing commercial speech. In central hudson gas and electric corp. v. public service commission (1980) the Supreme Court had held that a state's regulation of commercial speech must be "no more extensive than necessary" to achieve the regulation's purposes. In Fox, a 6–3 majority explicitly disavowed the idea that a state was limited to the least restrictive means in regulating commercial advertising. Justice antonin scalia wrote for the Court.

A state-university regulation of on-campus business activity effectively prevented a seller of household goods from holding "Tupperware parties" in the dormitories. Although the company's representatives not only sold goods but also made presentations on home economics, the Court concluded that the speech was commercial. The transactions proposed were lawful, and the advertising was not misleading; thus, the interest-balancing part of the Central Hudson Gas formula came into play. Here the university had important interests in preserving a noncommercial atmosphere on campus and tranquillity in the dormitories. Although the regulation did directly advance these interests, other means, less restrictive on speech, would arguably have served just as well. Justice Scalia noted that previous opinions had suggested that regulations of advertising must pass a "least restrictive means" test, but decided that such a formulation was too burdensome on the states. Rather, what is required is "a fit [between means and ends] that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is 'in proportion to the interest served"' (quoting from In re R.M.J., dealing with lawyer advertising).

Justice harry a. blackmun, who had written the Court's early opinions admitting commercial speech into the shelter of the first amendment, wrote for the three dissenters. He argued that the statute was invalid for overbreadth, and said he need not discuss the least-restrictive-means question.

Kenneth L. Karst
(1992)