At last week’s annual meeting of the ABA Forum on Communications Law (in Scottsdale, which is an oh-so-lovely trade for Seattle in early February), there was a fascinating plenary session on something near and dear to my heart: how to define “commercial speech.”
Of course, straightforward advertising is commercial speech. And nearly every case that has addressed commercial speech – including all of the Supreme Court advertising cases – has involved material that was unmistakably advertising. But the Supreme Court has never clearly resolved the core question: what, exactly, is commercial speech?
The answer matters, of course, because regulation of commercial speech is subject to a less exacting standard of review than other forms of content-based regulation. And with that label of “commercial” speech comes a host of other ills – complete loss of first amendment protection for anything that is wrong or misleading, openness to publicity rights claims, loss of anti-SLAPP protection, etc.
Steven Brody, who – along with my lawyer, Bruce Johnson – literally wrote the book on commercial speech law, pointed out that the Supreme Court has really adopted two different definitions of commercial speech. The first, from back when the commercial speech doctrine was still coalescing, is this:
That which does no more than propose a commercial transaction.
That’s from the Virginia Pharmacy case. But much as many of us would like that straightforward, bright-line test to be the rule, the Supreme Court also said, several years later, that commercial speech is present if some 2 or 3 of the following factors are met:
1) the message is in an advertising format;
2) the communication refers to a specific product; and
3) an economic motive drives the speaker’s expression. 1
That’s from the Bolger case, in 1983. The Supreme Court later pointed out that bolting political speech onto an advertisement won’t make the latter non-commercial speech, but also that expression in which political and commercial speech are “inextricably intertwined” must be subjected to strict scrutiny.
But the court has never come out and given us a bright-line test for distinguishing commercial from non-commercial speech.
Further complicating matters? The Kasky test for commercial speech, which is currently the law in California. And as I learned at the ABA Conference, the FTC has its own test for commercial speech: the “RJ Reynolds” test, which involves a 4 part analysis, ultimately similar to that called for in Bolger.
So that makes four different tests for whether a communication is commercial or non-commercial speech.
And adding to the confusion? It’s not as if forms of communication are getting any clearer. Rather, “native advertising” or “sponsored content” is rapidly blurring the lines between editorial and advertising messages. While there is a good case to be made that much of this type of content should not be regulated as commercial speech, it’s unclear whether much of it would pass even the test from Bolger.
A decade ago, the Supreme Court missed an opportunity to review Kasky and clarify the rule for commercial speech. It passed on the chance again, 3 years ago, in Sorrell v. IMS Health. I suspect, however, that the growth in native advertising is going to force the Court’s hand before too much more time has passed.