Commercial Speech

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COMMERCIAL SPEECH

Until 1976 "commercial speech"—a vague category encompassing advertisements, invitations to deal, credit or financial reports, prospectuses, and the like—was subject to broad regulatory authority, with little or no protection from the first amendment. The early decisions, epitomized by Valentine v. Chrestensen (1942), followed the then characteristic judicial approach of defining certain subject-matter categories of expression as wholly outside the scope of First Amendment protection. Under this two-level theory, a "definitional" mode of First Amendment adjudication, commercial speech was considered to be, along with obscenity, and libel, outside First Amendment protection.

When facing combinations of unprotected commercial speech and protected political speech in subsequent cases, the Court made First Amendment protection turn on the primary purpose of the advertisement. Thus, in murdock v. pennsylvania (1943), the Court struck down an ordinance requiring solicitors of orders for goods to get a license and pay a fee as it applied to Jehovah's Witnesses who sold religious pamphlets while seeking religious converts. On the other hand, in Bread v. Alexandria (1951) the Court held that a door-to-door salesman of national magazine subscriptions was subject to a town ordinance barring such sales techniques, because his primary purpose was to sell magazines rather than to disseminate ideas.

The "primary purpose" test unraveled in new york times v. sullivan (1964), more prominently known for another rejection of the definitional approaches in its holding that defamation is not beyond First Amendment protection. In Sullivan, the New York Times had printed an allegedly defamatory advertisement soliciting funds for civil rights workers. Although the advertisement's primary purpose was, arguably, to raise money, the Court held that it was protected by the First Amendment because it "communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern."

Recent decisions have gone well beyond Sullivan and moved advertising and other commercial speech—political or not—within the protection of the First Amendment. In the leading case, virginia pharmacy board v. virginia citizens consumer council (1976), the Court struck down a state ban on prescription drug price advertising. The Court rejected the state's "highly paternalistic approach," preferring a system in which "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." The Court cautioned, however, that because untruthful speech has never been protected for its own sake government may take effective action against false and misleading advertisements. And it indicated a greater scope for regulating false or misleading commercial speech than is permitted in relation to false political statements, such as defamations of public officials, because advertising is more easily verifiable and is less likely to be "chilled" by regulation because it is a commercial necessity.

Virginia Pharmacy Board fixed the principle that advertising may be controlled when it is false, misleading, or takes undue advantage of its audience; but the case left open the issue whether whole categories of commercial speech deemed inherently misleading or difficult to police can be suppressed. This issue divided the Supreme Court with respect to lawyers' advertising, when a narrow majority extended First Amendment protection to price advertising of routine legal services, rejecting the dissenters' claim that the complex and variegated nature of legal services gave lawyers' advertising a high potential for deception and impeded effective regulation of particular deceptions. However, the Court held that "ambulance chasing"—in-person solicitation of accident victims for pecuniary gain—could be barred entirely because of its potential for deception and overbearing.

Where regulation of commercial expression is not directed at potential deception but intended to advance other interests such as aesthetics or conservation, the Supreme Court has followed a relatively permissive approach to state regulatory interests, while becoming hopelessly fragmented about the First Amendment principles that ought to govern. Thus, in Metromedia, Inc. v. San Diego (1981) a shifting majority coalition of Justices made clear that commercial billboards could be entirely banned in a city for aesthetic or traffic safety reasons. Recent decisions, following central hudson gas v. public service commission (1980), have fashioned a four-part test to appraise the validity of restrictions on commercial speech. Protection will not be extended to commercial speech that is, on the whole, misleading or that encourages unlawful activity. Even protected commercial speech may be regulated if the state has a substantial interest, if the regulation directly advances that interest, and if the regulation is no broader than necessary to effectuate the state's interest. The elastic properties of this four-part test in actual application have generated considerable disarray within the Supreme Court.

The commercial speech decisions of the burger court have made clear that freedom of expression principles extend beyond political and religious expression, protecting not only the marketplace of ideas but expression in the marketplace itself. Second, in affirming relatively broad regulatory power over commercial speech, even though it is deemed to be protected by the First Amendment, the Court has reinforced the notion that the First Amendment extends different levels of protection to different types of speech. The commercial speech decisions thus lend support to Justice robert h. jackson ' sobiter dictum in kovacs v. cooper (1949) that under the First Amendment each type and medium of expression "is a law unto itself."

Benno C. Schmidt, Jr.
(1986)