Constitutional Law II

Commercial Speech

Fall 2006 Con Law II 2

Early yearsValentine v. Christensen (1942) commercial advertising not protected by 1st

AmNY Times v. Sullivan (1964) fact that statements appeared in paid ad in

commercial newspaper, irrelevantBigelow v. Virginia (1975) advertising that went beyond merely

proposing a commercial transaction (here, abortion services) was protected

“factual material of clear `public interest’”

Fall 2006 Con Law II 3

VA Pharmacy Bd. v. VCCC (1976)

Drug price advertising prohibited. Why? advertising is unprofessional protect consumers from aggressive retailing protect pharma/cies from price competitionWho benefits from advertising drug prices? Pharmacies (interest is purely commercial) Consumers (same)

Fall 2006 Con Law II 4

VA Pharmacy Bd. v. VCCC (1976)

Is advertising protected (1st Amd) speech? No. It is solicitationsolicitation of a transaction, and can be

regulated to same extent as the transaction Note: trade is very heavily regulated by states/fed

Yes. It requires intermediation by listener; no instrumental/interpellativeinstrumental/interpellative effects

Yes. It serves 1st Amd valuesvalues as other speech self-expression/autonomy (not likely with corporations) search for knowledge (marketplace of ideas/prices)

Is this less valuable than scientific, literary, other knowledge? political debate

To some extent, especially in our political economy.

Fall 2006 Con Law II 5

VA Pharmacy Bd. v. VCCC (1976)

If protected speech, to what degree? Lesser degree (intermediate) because:

Proposes transactions that are heavily regulated Only partially implicates 1st Amd principles Commercial speech is robust (profit motive) and

doesn’t need as strong judicial protectionIntermediate scrutiny: ENDS: Substantial state interest MEANS: Restriction must be proportional to the

interest Must directly advance the interest Least restrictive regulation

Fall 2006 Con Law II 6

VA Pharmacy Bd. v. VCCC (1976)

What is (less-protected) Commercial Speech? speech that does no more than propose a

commercial transaction? Bolger v. Youngs (1983) e.g., charitable fund raising?

expression related solely to economic interests of speaker and audience Central Hudson (1980)

What commercial speech is protected? Truthful facts (opinions, etc) False statements Deceptive or misleading advertising Promotion of illegal activities (illegal drugs)

unp r

ote c

ted

Fall 2006 Con Law II 7

Central Hudson v. PSC (1980)

Ban on electric co. promotional advertisingState interest: energy conservation Assumption: advertising stimulates consumption

Assumption: government must protect consumers from themselves

Note: it is the speech that is protected, not the speaker Consumers’ 1st amd. right to receive info

Fall 2006 Con Law II 8

Central Hudson v. PSC (1980)4-part test for commercial speech:

1. Is the speech protected (e.g., truthful)?

2. Is the gov’t interest substantial?

3. Does restriction directly serve that interest?

4. Is the law more restrictive than necessary?

1. Truthful ads give useful information to consumers

2. Interest in energey con-servation is substantial

3. Yes. Ad ban may reduce demand for more energy

4. Yes. It is overbroad; not all banned ads would undermine conservation

A more carefully tailored (less effective?) regulation of utility advertising might survive

Is this really intermediate scrutiny, or strict scrutiny? Protecting economic interests under the 1st amend rather than due process?

Fall 2006 Con Law II 9

Central Hudson v. PSC (1980)

Fall 2006 Con Law II 10

Attorney AdvertisingBates v. State Bar (1977) Advertising prices of routine legal services

protected under Virginia Pharmacy

Ohralik v. Ohio State Bar (1978) Solicitation of standard legal employment

not protected; state had substantial interest in the protection of the legal system and potential litigants

In re Primus (1978) Solicitation of law reform cases (impact litigation)

more than mere commercial speech involved strict scrutiny, rather than intermediate review

Fall 2006 Con Law II 11

Attorney AdvertisingZauderer v. Office Disciplin. Counsel (1985)Shapero v. Kenticky Bar Ass’n (1988) Greater risk of undue influence with in-person

soliciation than with general advertisingFlorida Bar v. Went For It (1995) Ban on mail advertising w/in 30 days upheldRule ? Ad-hoc balancing of speech interests (mid-level

if purely commercial) vs. state interests in administration of justice and undue influence

Fall 2006 Con Law II 12

Lorillard Tobacco v. Reilly (2001)

State regulation of tobacco advertising4-step Central Hudson test: Truthful, deceptive or illegal advertising?

If smoking is that dangerous, ban it. Substantial state interest?

Health of children Direct relationship?

Ample evidence that advertising causes use Reasonable fit, or overbroad regulation?

AG insensitive to speech interests; not carefully tailored (too restrictive)

Compare to ban on adult speech to protect children

Fall 2006 Con Law II 13

Lorillard Tobacco v. Reilly (2001)

Sales practices restrictions No unattended displays, self-service machinesIs a cigarette machine conduct or speech? To extent it is both, which is Mass. regulating?

The actual sale (including customer), not messageRule: When regulation is directed at conduct, only

minimal 1st amd scrutiny will be used, despite some incidental (spillover) effect on speech

Fall 2006 Con Law II 14

Future of Commercial Speech

Note Kennedy & Thomas’ concurrences Would subject commercial speech to same

strict scrutiny as other speech Does this put corporate rights on par with

individual rights? Will corporate free speech dominate

politics? Corporate dominance of media &

communications Money is speech

Campaign funding / spending limitations

Fall 2006 Con Law II 15

1st Nat’l Bank Boston v. Bellotti (1978)

Corporate spending on elections Bank spends to defeat progressive income tax Political speech? Whose?Value of speech independent of sourceState interests fair elections: money distorts electoral process

But see Austin v. MI Chamber of Com (1990) corporate governance

corporate powers are derived wholly from state law shareholder protection?

corruption