The First The First Amendment and Amendment and

AdvertisingAdvertisingThe Supreme Court and The Supreme Court and

Tobacco, Lawyer and Liquor Tobacco, Lawyer and Liquor AdvertisingAdvertising

By DJ FordBy DJ Ford

The Central Hudson TestThe Central Hudson Test

The Court established a four-prong test The Court established a four-prong test in in Central Hudson Gas & Electric Corp. Central Hudson Gas & Electric Corp. v. Public Service Commission of NY, v. Public Service Commission of NY, 477 477 U.S. 564 (1980)U.S. 564 (1980)

Why? There was a state regulation Why? There was a state regulation banning electric utilities from using all banning electric utilities from using all ads promoting the use of electricity.ads promoting the use of electricity.

The Court struck down this ban, saying The Court struck down this ban, saying the blanket ban violated the First the blanket ban violated the First AmendmentAmendment

The ProngsThe Prongs

To be upheld the ad restriction must pass To be upheld the ad restriction must pass The Courts test, which entails, in the The Courts test, which entails, in the following order:following order: Determining whether the speech is protected Determining whether the speech is protected

by the First Amendment.by the First Amendment. Determining whether the government interest Determining whether the government interest

is substantial.is substantial. Determining whether the law advances that Determining whether the law advances that

interestinterest Determining if the law is more extensive than Determining if the law is more extensive than

necessarynecessary

Lawyer AdvertisingLawyer Advertising

Bates v. State Bar of Arizona – 433 U.S. Bates v. State Bar of Arizona – 433 U.S. 350 (1977)350 (1977) The Court upheld a ban on price The Court upheld a ban on price

advertising for complex legal servicesadvertising for complex legal services Misleading because lawyers can NOT put a Misleading because lawyers can NOT put a

definitive tag how much it’s going to cost.definitive tag how much it’s going to cost. Divorce proceedings, defamation suits, etc.Divorce proceedings, defamation suits, etc. Uncontested divorce proceeding price may Uncontested divorce proceeding price may

be advertised. Why? It may have a fixed be advertised. Why? It may have a fixed price.price.

Lawyer AdvertisingLawyer Advertising

In-person advertising also prohibitedIn-person advertising also prohibited Person is distraught – divorce, medical Person is distraught – divorce, medical

malpracticemalpractice Privacy is invadedPrivacy is invaded Coercion, intimidationCoercion, intimidation May demand an immediate responseMay demand an immediate response

Alcohol AdvertisingAlcohol Advertising

The government always passes the The government always passes the second prong of the test – it does second prong of the test – it does have a substantial interest in have a substantial interest in curbing consumption of alcohol.curbing consumption of alcohol.

But remember, the law must pass But remember, the law must pass prong #1 to get to prong #2, and prong #1 to get to prong #2, and then pass 3 and 4 as well.then pass 3 and 4 as well.

Alcohol AdvertisingAlcohol Advertising Liquormart, Inc. v. Rhode Island – 517 U.S. 484 Liquormart, Inc. v. Rhode Island – 517 U.S. 484

(1996)(1996) Struck down an RI ban on alcohol price Struck down an RI ban on alcohol price

advertisingadvertising The state failed to prove that without the ban, The state failed to prove that without the ban,

alcohol sales and consumption would increasealcohol sales and consumption would increase

Rubin v. Coors Brewing Co. - 514 U.S. 476 (1995)Rubin v. Coors Brewing Co. - 514 U.S. 476 (1995) Struck down a ban on providing alcohol content Struck down a ban on providing alcohol content

on the labelon the label Failed prong #3Failed prong #3

Tobacco AdvertisingTobacco Advertising

Lorillard Tobacco Co v. Reilly – 527 Lorillard Tobacco Co v. Reilly – 527 U.S. 173 (1999)U.S. 173 (1999) Struck down a MA law prohibiting outdoor Struck down a MA law prohibiting outdoor

tobacco ads within a 1,000 ft. radius of all tobacco ads within a 1,000 ft. radius of all schools or playgroundsschools or playgrounds

Failed prong #4Failed prong #4 The Court struck down another MA law The Court struck down another MA law

prohibiting indoor tobacco ads lower prohibiting indoor tobacco ads lower than five feet from the ground. Failed than five feet from the ground. Failed both #3 and #4.both #3 and #4.

Justice O’ ConnorJustice O’ Connor

““Not all children are less than five feet Not all children are less than five feet tall, and those that are certainly tall, and those that are certainly have the ability to look up and take have the ability to look up and take in their surroundings.”in their surroundings.”