Advertising – the unmistakable sort found in billboards, TV spots and magazine ads – is obviously commercial speech. But commercial entities can also speak in ways that are entitled to full first amendment protection. Although this is far-from-new concept, it gained renewed focus in the aftermath of the Citizens United 1 case and the ensuing furor over the concept of “corporate personhood.” This was a bit of a hyperbolic distraction; the law doesn’t afford corporations ALL of those rights inherent to individual human personhood. 2 But there’s no question that one right corporations and other organizations do have – collectively, on behalf of their members – is to speak. And such speech is protected by the first amendment as surely as if an individual was the sole speaker.
But the multiplicity of ways that commercial entities can communicate today makes the question of boundary-drawing both more necessary and more difficult. So where is the line drawn? What speech is “commercial” and what is not?
First Things First: “Commercial Speaker” Does Not Equal “Commercial Speech”
Let me quote at length from a footnote in the D.C. Circuit case of National Association of Manufacturers v. SEC (on rehearing, August 2015), because it articulates this concept so well:
It is easier to discern what the Supreme Court does not consider “commercial speech” than to determine what speech falls within that category.
For instance, even if “money is spent to project” speech, this does not make it commercial speech. Otherwise there is no explaining cases such as New York Times Co. v. Sullivan and Buckley v. Valeo.
Speech “carried in a form” sold for profit does not render it commercial speech under the Court’s decisions. Otherwise books, newspapers, and television programming would all be commercial speech.
Not all speech soliciting money is commercial speech. Otherwise, Riley v. National Federation of the Blind of North Carolina and other cases such as Cantwell v. Connecticut would have been decided differently.
The Court has also determined that just because the speech is about “a commercial subject,” it does not fall into the category of commercial speech, otherwise “business section editorials would be commercial speech; and it isn’t even factual speech on a commercial subject, or else business section news reporting would be commercial speech.” Alex Kozinski & Stuart Banner, Who’s Afraid of Commercial Speech?, 76 VA. L. REV. 627, 638 (1990) (citing Va. Pharmacy, 425 U.S. at 761-62).[internal cites removed; broken into paragraphs for clarity]
It’s so important to get this right, because even many lawyers – who should know better – get it wrong: just because a speaker is commercial doesn’t make that speaker’s expression commercial speech.
So what is?
Virtually all of the Supreme Court decisions directly addressing commercial speech have dealt with material that was unquestionably commercial. The most helpful guidance the Court has given is that commercial speech is “that which does no more than propose a commercial transaction.” 3
Such a definition would seem to limit the commercial speech doctrine to out-and-out advertising. And indeed most Supreme Court cases on commercial speech have employed the formulation from Virginia Pharmacy – that commercial speech is that which does no more than propose a commercial transaction, or involves “expression related solely to the economic interests of the speaker and its audience.” 4
What’s more, it’s also clear that economic interest alone isn’t sufficient to make speech commercial. As the Supreme Court noted in Virginia Pharmacy: 5
“Speech does not lose its First Amendment protection because money is spent to project it, as in a paid advertisement of one form or another . . . Speech likewise is protected even though it is carried in a form that is “sold” for profit.”
Or to put it more directly: even a paid advertisement won’t be considered “commercial speech” if it consists of editorial or political content. 6
However, the story doesn’t end there. In the years since Virginia Pharmacy, the definition of “commercial speech” has grown increasingly unclear. Read on for how courts have dealt with communications involving mixed commercial and non-commercial messages:
- Citizens United v. Federal Election Commission, 588 U.S. 310 (2010) ↩
- See, e.g., the wonderfully-written decision in Federal Communications Commission v. AT&T, Inc. 131 S. Ct. 1177 (2011), finding that corporations do not have personal privacy rights. ↩
- See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc. 425 U.S. 748, 762 (1976). ↩
- Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 561 (1980). ↩
- Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc. 425 U.S. 748, 761 (1976). ↩
- See New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964). ↩