More Protection for Commercial Speech

It’s been nearly 5 years since the Supreme Court’s last big commercial speech case, Sorrell v. IMS Health. Sorrell is interesting because it’s one of the only commercial speech cases to address something other than out-and-out advertising.  But it’s interesting in another way, too: it may stand for the proposition that some commercial speech regulation is entitled to even more protection.

How’s that? A recent case out of the Ninth Circuit does a great job of laying out the groundwork. Starting on page 15 of the slip opinion, the decision in Retail Digital Network v. Appelsmith sets out a case for holding that Sorrell dictates that content- or speaker-based restrictions on commercial speech are subject to “heightened scrutiny” somewhat beyond that required under the commercial speech doctrine.

We don’t know how far beyond; simply that the state is held to a higher standard than intermediate scrutiny and a lower standard than strict scrutiny (the latter of which is nearly impossible to meet). But let’s pause and note how unequivocally the court puts it:

Sorrell modified the Central Hudson analysis by requiring heightened judicial scrutiny of content-based restrictions on non-misleading advertising of legal goods or services.

Central Hudson already held the state to the burden of meeting intermediate scrutiny; now any such regulation must meet an even-higher bar.

In the regulatory world that this blog is concerned about, this should mean that attorney advertising regulators become entirely focused on the consumer protection nature of their mission. After all, Sorrell puts to bed any idea that attorney advertising rules can be applied mechanically.

Will that happen overnight? We’ll see. Many of the attorney regulators I’ve talked to have long dealt with their advertising rules in a very consumer-centric way anyway, choosing their fights carefully and only going after bad actors – and then going after them HARD. But others have employed their rules rigidly, seemingly unburdened of the knowledge that their regulatory interpretations must be mindful of free speech guarantees.

For this latter group – more grocery clerks than consumer protection watchdogs – it’s safe to say that there will soon be an awakening of awareness, one way or another.

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