First Amendment Protection for Commercial Advertising: The New Constitutional Doctrine

Merrill, Thomas W.

This article argues that after Bigelow and Virginia Board of Pharmacy, the constitutionality of regulations of commercial speech should be assessed in the manner first suggested in Pittsburgh Press. Under this approach, courts should determine whether the speech at issue is commercial speech, then apply either the balancing test associated with commercial speech or the standard of strict scrutiny employed in measuring speech regulations outside the commercial speech context. In making this inquiry, the courts should adopt a definition of commercial speech based upon the reduced first amendment value that the Supreme Court has identified as characteristic of commercial advertising. The proposed definition reflects this lower order of value and the greater durability of commercial advertising: commercial speech is speech referring to a brand name product or service that is not itself protected by the first amendment, issued by a speaker with a financial interest in the sale of the product or service or in the distribution of the speech.

Where the speech involved is within the terms of this definition, courts should review regulations under a balancing test that requires the governmental interests supporting the regulation to outweigh the first amendment value of the speech. In applying this balancing test, courts should consider such factors as whether the speech involved is false or deceptive, whether the regulation singles out advertising with particular content for special treatment, whether the activity advertised is itself illegal, and whether the speaker's incentives to advertise and his access to information about the item advertised make his speech more resistant to the chilling effects of regulation.

This article suggests that a showing of significant governmental interest should be required to sustain total prohibitions of truthful advertising for lawful products and services. Valid community interests in controlling the consumption of undesirable commercial products will not be frustrated by this requirement. As the court of appeals observed in Chrestensen v. Valentine, even if complete suppression of advertising for a particular product is unwarranted, less restrictive methods of regulating commercial advertising may be available to vindicate the government's interests. The Supreme Court's ill-considered ruling in Chrestensen obscured this insight, but three decades later the Court has seen its wisdom.

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University of Chicago Press
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November 6, 2015