Commercial Speech: Constitutional Protections And Their Limits

Commercial speech is a form of protected communication under the First Amendment, but it does not receive as much protection as non-commercial speech. In the US, commercial speech is protected at the expense of public health. The US Constitution does not protect social rights, such as the right to health, housing, or food. However, US law recognises corporations as entities akin to individuals in terms of the 'negative rights' the Constitution does protect, such as the freedom of speech and to practice religion without government interference. The Court has established that commercial speech is entitled to First Amendment protection, explaining that there is a consumer interest in the unrestricted stream of commercial information.

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Commercial speech is protected under the First Amendment

The Central Hudson test determines how far the regulation of commercial speech can go before it violates the First Amendment. If the speech is fraudulent or illegal, the government can regulate it without First Amendment constraints. If it is not, the court must ask whether the asserted governmental interest is substantial.

The Court has also established the Chrestensen doctrine, which states that commercial speech is not entitled to First Amendment protection, regardless of how the expression is communicated. However, this doctrine has been challenged by the Court's recognition that commercial speech does have social value.

The United States is an outlier internationally in its protection of commercial speech, as its Constitution does not protect social rights such as the right to health, housing, or food. Instead, US law recognises corporations as entities akin to individuals in terms of the "negative rights" the Constitution does protect, such as freedom of speech and the freedom to practice religion without government interference.

Commercial speech is not protected at the same level as non-commercial speech

Commercial speech is a form of protected communication under the First Amendment, but it does not receive as much protection as non-commercial speech. This is because commercial speech is considered to have less social value than non-commercial speech. For example, political speech is considered to be of greater importance to a democratic society than commercial speech.

The Court has established that commercial speech is entitled to First Amendment protection, explaining that there is a consumer interest in the unrestricted flow of commercial information. This interest is just as strong, if not stronger, than the interest in current political issues. However, this does not mean that commercial speech is immune from government regulation. If commercial speech is fraudulent, illegal, or false and misleading, the government can regulate it without First Amendment constraints.

One important test developed by the Court to determine protection for commercial speech is the Central Hudson test. With this test, courts determine how far the regulation of commercial speech can go before it violates the First Amendment. If the speech is not fraudulent or illegal, then the court must ask whether the asserted governmental interest is substantial.

The United States is an outlier internationally because US law unquestionably protects commercial speech at the expense of public health. Unlike the constitutions of other countries, the US Constitution does not protect social rights, such as the right to health, housing, or food.

The Central Hudson test determines how far the regulation of commercial speech can go

Commercial speech is a form of protected communication under the First Amendment, but it does not receive as much free speech protection as forms of non-commercial speech, such as political speech. The Central Hudson test determines how far the regulation of commercial speech can go before it runs afoul of the First Amendment. The test was developed in the Central Hudson Gas & Electric Corp. v. Public Service Commission of New York case in 1980, which reviewed a New York state public service commission policy prohibiting all utility companies’ promotional ads encouraging the use of electricity.

The Central Hudson test asks whether the speech is fraudulent or illegal. If it is, the government can freely regulate it without First Amendment constraints. If it is not, then the court must ask whether the asserted governmental interest is substantial. This test is important because it recognises that commercial speech has some social value and is thus entitled to constitutional protection, though not at the same level as non-commercial speech.

The Court also established the Chrestensen doctrine, which provided that commercial speech, or expression promoting commercial activities, isn’t entitled to First Amendment protection. However, the Court's approach began to shift in the 1970s towards the view that commercial speech did have some social value and was thus entitled to some protection. This shift was reflected in the 1975 Bigelow v. Virginia case, which addressed a state law criminalising publications that encouraged abortion.

The United States is an outlier internationally because US law unquestionably protects commercial speech at the expense of public health. Unlike the constitutions of other countries, the US Constitution does not protect social rights, such as the right to health, housing, or food, so there is no legally recognised right to health enforceable against the government.

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The Chrestensen doctrine states that commercial speech is not entitled to First Amendment protection

The shift in the 1970s recognised that commercial speech did have some social value and was thus entitled to constitutional protection, though not to the same level as non-commercial speech. This was demonstrated in the 1975 Bigelow v. Virginia case, where the Court addressed a state law criminalising publications that encouraged abortion.

In 1980, the Court established the standard for analysing the constitutionality of commercial speech restrictions in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. In this case, the Court reviewed a New York state public service commission policy prohibiting all utility companies' promotional ads encouraging the use of electricity. The Court recognised that commercial speech is a form of protected communication under the First Amendment, but it does not receive as much free speech protection as forms of non-commercial speech, such as political speech.

The Court noted that commercial speech does not lose its protection simply because money is transacted through it, and that there is a consumer interest in the unrestricted stream of commercial information. This interest is just as strong, if not stronger, than the interest in current political issues. The free flow of commercial information is indispensable to a free enterprise system. However, commercial speech can be regulated if it is false or misleading, or if it is fraudulent or illegal.

Commercial speech can be regulated if false or misleading

Commercial speech is protected by the First Amendment, but it does not receive as much protection as non-commercial speech. This is because commercial speech is considered to have less social value.

The Central Hudson test is used to determine how far the regulation of commercial speech can go before it violates the First Amendment. If the speech is fraudulent or illegal, the government can regulate it without First Amendment constraints. If it is not, the court must ask whether the government's interest in regulating the speech is substantial.

Commercial speech can be regulated if it is false or misleading. This was established in the 1975 Bigelow v. Virginia case, where the Court addressed a state law criminalising publications that encouraged abortion. The Court noted that commercial speech is not immune from government regulation, even though it is protected by the First Amendment.

The Chrestensen doctrine, which held that commercial speech is not entitled to First Amendment protection, was adhered to for over two decades. However, in the 1970s, the Court's approach began to shift towards recognising the social value of commercial speech and granting it constitutional protection.

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