The Commercial Speech Doctrine

In 1977, the Supreme Court issued Bates v. Arizona, a decision dealing with, interestingly enough, the commercial speech of professionals (Bates was an attorney). Bates came out amidst a flurry of decisions establishing that advertising is protected by the First Amendment. An embryonic version of what became known as the “commercial speech” doctrine had been issued the year prior in the Virginia Pharmacy 1 case, and  by 1980 the doctrine found its lasting expression in Central Hudson Gas & Electric v. Public Service Commission of New York. 2 In that decision, the court emphasized the societal importance of marketing communications:

Old_City_Light_plant__seattle“Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information . . . people will perceive their own best interest if only they are well enough informed, and . . . the best means to that end is to open the channels of communication, rather than to close them” 3

Central Hudson cemented the “intermediate scrutiny” standard for advertising regulation, and laid out a three-part test for any such limitations on advertising. Under the Central Hudson test, the state carries the burden to show that any commercial speech regulation is:

    • In service of a substantial state interest;

    • Directly advances that government interest; and

    • Is no more extensive than necessary to serve that interest. 4

Essentially, the regulation of truthful advertising must be driven by necessity, and cannot be overly broad. The court in Central Hudson explained:

“Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government’s purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.” 5

One critical thing to remember about this test is that the state carries the burden to justify its regulation.  It cannot regulate with wild abandon, and it cannot require that advertisers justify why their communications aren’t unlawful.  

Or to put it another way: despite the form of the communication (advertising), non-deceptive expression cannot be restricted by the state without a very good reason – and even then only to the extent necessary.

More on Commercial Speech:

What is “Commercial” Speech?

Regulating the Advertising of Professionals

Compelled Commercial Speech