The Commercial Speech Doctrine

While the court’s opinion in Bates employed a nascent version of the commercial speech doctrine that had been articulated the year prior in the Virginia Pharmacy 1 decision, the concept was solidified in the 1980 decision in Central Hudson Gas & Electric v. Public Service Commission of New York. 2 In that decision, the court emphasized again the 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

In that case, the Supreme Court solidified the “intermediate scrutiny” standard for advertising regulation, and laid out a three-part test for such limitations.  Under the so-called 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

Bottom line: the regulation of truthful advertising must be driven by necessity, and cannot be overly broad. The court in Central Hudson put it best:

“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 willy-nilly, nor can it require attorneys to justify why their communications aren’t unlawful.  

Unfortunately, these requirements are too often observed in the breach: most attorney advertising regulation is not informed by research or other empirical data indicating the need for such restrictions.  And some states – including California – employ a system of advertising “standards” that ostensibly shift the burden of proof to the lawyer to prove that a given advertising method is not false and misleading.

What it should boil down to is this: despite the form of the communication (advertising), non-deceptive expression cannot be restricted by the state without damn good reason – and then only to the extent necessary.