FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION--SPEECH AND PRESS
This material is extracted from Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States, 1992 edition, pages 1113-1118, with 1996 updates added. The entire original document is available on the web at http://www.access.gpo.gov/congress/senate/constitution/.
The footnote numbers aren't in order because the footnotes in the added material have numbers starting after the last original footnote.
Footnotes to Governmental Regulation of Commercial Speech
1 316 U.S. 52 (1942). See also Breard v. City of Alexandria, 341 U.S. 622 (1951). The doctrine was one of the bases upon which the banning of all commercials for cigarettes from radio and television was upheld. Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (D.D.C. 1971) (three-judge court), aff'd per curiam, 405 U.S. 1000 (1972).
2 Books that are sold for profit, Smith v. California, 361 U.S. 147, 150 (1959); Ginzburg v. United States, 383 U.S. 463, 474-75 (1966), advertisements dealing with political and social matters which newspapers carry for a fee, New York Times Co. v. Sullivan, 376 U.S. 254, 265-66 (1964), motion pictures which are exhibited for an admission fee, United States v. Paramount Pictures, 334 U.S. 131, 166 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952), were all during this period held entitled to full First Amendment protection regardless of the commercial element involved.
3 Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 561 (1980).
4 Pittsburgh Press Co. v. Comm'n on Human Relations, 413 U.S. 376 (1973).
5 Id. at 385, 389. The Court continues to hold that government may ban commercial speech related to illegal activity. Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 563-64 (1980).
6 Bigelow v. Virginia, 421 U.S. 809 (1975).
7 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). Justice Rehnquist dissented. Id. at 781.
8 Id. at 763-64 (consumers' interests), 764-65 (social interest), 766-70 (justifications for the ban).
9 Linmark Ass'n v. Township of Willingboro, 431 U.S. 85 (1977).
10 Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Chief Justice Burger and Justices Powell, Stewart, and Rehnquist dissented. Id. at 386, 389, 404.
11 Id. at 368-79. See also In re R.M.J., 455 U.S. 191 (1982) (invalidating sanctions imposed on attorney for deviating in some respects from rigid prescriptions of advertising style and for engaging in some proscribed advertising practices, because the State could show neither that his advertising was misleading nor that any substantial governmental interest was served by the restraints).
12 Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988). Shapero was distinguished in Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995), a 5-4 decision upholding a prohibition on targeted direct-mail solicitations to victims and their relatives for a 30-day period following an accident or disaster. The ban struck down in Shapero was far broader, both in scope and in duration, the Court explained, and was not supported, as Florida's was, by findings describing the harms to be prevented by the ban. Dissenting Justice Kennedy disagreed that there was a valid distinction, pointing out the Court's previous reliance on the mode of communication (in-person solicitation versus mailings) as ``mak[ing] all the difference.'' 115 S. Ct. at 2382 (quoting Shapero, 486 U.S. at 475).
13 Peel v. Illinois Attorney Registration and Disciplinary Comm'n, 496 U.S. 91 (1990).
28 Ibanez v. Florida Bd. of Accountancy, 114 S. Ct. 2084 (1994) (also ruling that Accountancy Board could not reprimand the CPA, who was also a licensed attorney, for truthfuly listing her CPA credentials in advertising for her law practice).
14 Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978). But compare In re Primus, 426 U.S. 412 (1978). The distinction between in- person and other attorney advertising was continued in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (``print advertising . . . in most cases . . . will lack the coercive force of the personal presence of the trained advocate'').
29 Edenfield v. Fane, 507 U.S. 761, 775 (1993).
30 Id. at 1803.
15 Friedman v. Rogers, 440 U.S. 1 (1979).
16 Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980). See also Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530 (1980) (voiding a ban on utility's inclusion in monthly bills of inserts discussing controversial issues of public policy). However, the linking of a product to matters of public debate does not thereby entitle an ad to the increased protection afforded noncommercial speech. Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).
17 Commercial speech is viewed by the Court as usually hardier than other speech; because advertising is the sine qua non of commercial profits, it is less likely to be chilled by regulation. Thus, the difference inheres in both the nature of the speech and the nature of the governmental interest. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771-72 n.24 (1976); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-56 (1978). It is, of course, important to develop distinctions between commercial speech and other speech for purposes of determining when broader regulation is permissible. The Court's definitional statements have been general, referring to commercial speech as that ``proposing a commercial transaction,'' Ohralik v. Ohio State Bar Ass'n, supra, or as ``expression related solely to the economic interests of the speaker and its audience.'' Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 561 (1980). It has simply viewed as noncommercial the advertising of views on public policy that would inhere to the economic benefit of the speaker. Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530 (1980). So too, the Court has refused to treat as commercial speech charitable solicitation undertaken by professional fundraisers, characterizing the commercial component as ``inextricably intertwined with otherwise fully protected speech.'' Riley v. National Fed'n of the Blind, 487 U.S. 781, 796 (1988). By contrast, a mixing of home economics information with a sales pitch at a ``Tupperware'' party did not remove the transaction from commercial speech. Board of Trustees v. Fox, 492 U.S. 469 (1989).
18 Central Hudson Gas & Electric Co. v. Public Service Comm'n, 447 U.S. 557, 563, 564 (1980). Within this category fall the cases involving the possibility of deception through such devices as use of trade names, Friedman v. Rogers, 440 U.S. 1 (1979), and solicitation of business by lawyers, Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), as well as the proposal of an unlawful transaction, Pittsburgh Press Co. v. Comm'n on Human Relations, 413 U.S. 376 (1973).
19 Central Hudson Gas & Electric Co. v. Public Service Comm'n, 447 U.S. 557, 564, 568-69 (1980). The Court deemed the State's interests to be clear and substantial. The pattern here is similar to much due process and equal protection litigation as well as expression and religion cases in which the Court accepts the proffered interests as legitimate and worthy. See also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987) (governmental interest in protecting USOC's exclusive use of word ``Olympic'' is substantial). Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995) (government's interest in curbing strength wars among brewers is substantial, but interest in facilitating state regulation of alcohol is not substantial). Contrast United States v. Edge Broadcasting Co., 509 U.S. 418 (1993), finding a substantial federal interest in facilitating state restrictions on lotteries. ``Unlike the situation in Edge Broadcasting,'' the Coors Court explained, ``the policies of some states do not prevent neighboring states from pursuing their own alcohol-related policies within their respective borders.'' 115 S. Ct. at 1591. However, in Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), the Court deemed insubstantial a governmental interest in protecting postal patrons from offensive but not obscene materials. For deferential treatment of the governmental interest, see Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986) (Puerto Rico's ``substantial'' interest in discouraging casino gambling by residents justifies ban on ads aimed at residents even though residents may legally engage in casino gambling, and even though ads aimed at tourists are permitted).
20 Id. at 569. The ban here was found to directly advance one of the proffered interests. Contrast this holding with Bates v. State Bar of Arizona, 433 U.S. 350 (1977); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); and Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), where the restraints were deemed indirect or ineffectual. Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995) (prohibition on display of alcohol content on beer labels does not directly and materially advance government's interest in curbing strength wars among brewers, given the inconsistencies and ``overall irrationality'' of the regulatory scheme); Edenfield v. Fane, 507 U.S. 761 (1993) (Florida's ban on in-person solicitation by certified public accountants does not directly advance its legitimate interests in protecting consumers from fraud, protecting consumer privacy, and maintaining professional independence from clients).
31 United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993) (``this question cannot be answered by limiting the inquiry to whether the governmental interest is directly advanced as applied to a single person or entity'').
21 Central Hudson Gas & Electric Co. v. Public Service Comm'n, 447 U.S. 557, 565, 569-71 (1980). This test is, of course, the ``least restrictive means'' standard. Shelton v. Tucker, 364 U.S. 479, 488 (1960). In Central Hudson, the Court found the ban more extensive than was necessary to effectuate the governmental purpose. And see Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), where the Court held that the governmental interest in not interfering with parental efforts at controlling children's access to birth control information could not justify a ban on commercial mailings about birth control products; ``[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.'' Id. at 74. Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995) (there are less intrusive alternatives--e.g., direct limitations on alcohol content of beer--to prohibition on display of alcohol content on beer label). Note, however, that in San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987), the Court applied the test in a manner deferential to Congress: ``the restrictions [at issue] are not broader than Congress reasonably could have determined to be necessary to further these interests.''
22 Board of Trustees v. Fox, 492 U.S. 469, 480 (1989) In a 1993 opinion the Court elaborated on the difference between ``reasonable fit'' and least restrictive alternative. ``A regulation need not be `absolutely the least severe that will achieve the desired end,' but if there are numerous and obvious less-burdensome alternatives to the restriction . . . , that is certainly a relevant consideration in determining whether the `fit' between ends and means is reasonable.'' City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n.13 (1993).
32 507 U.S. 410 (1993). See also Edenfield v. Fane, 507 U.S. 761 (1993), decided the same Term, relying on the ``directly advance'' third prong of Central Hudson to strike down a ban on in-person solicitation by certified public accountants.
33 Id. at 1514.
34 Id. at 1515. The Court also noted the ``minute'' effect of removing 62 ``commercial'' newsracks while 1,500 to 2,000 other newsracks remained in place. Id. at 1510.
35 United States v. Edge Broadcasting Co., 509 U.S. 418 (1993).
36 Id. at 2704.
37 Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 345-46 (1986). For discussion of the case, see P. Kurland, Posadas de Puerto Rico v. Tourism Company: ``'Twas Strange, 'Twas Passing Strange; 'Twas Pitiful, 'Twas Wondrous Pitiful,'' 1986 Sup. Ct. Rev. 1.
38 In Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995) (invalidating a federal ban on revealing alcohol content on malt beverage labels), the Court rejected reliance on Posadas, pointing out that the statement in Posadas had been made only after a determination that the advertising could be upheld under Central Hudson. The Court found it unnecessary to consider the greater-includes-lesser argument in United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993), upholding through application of Central Hudson principles a ban on broadcast of lottery ads.
39 116 S. Ct. 1495 (1996).
40 116 S. Ct. at 1511-14 (opinion of Stevens, joined by Justices Kennedy, Thomas, and Ginsburg). The Stevens opinion also dismissed the Posadas ``greater- includes-the-lesser argument'' as ``inconsistent with both logic and well-settled doctrine,'' pointing out that the First Amendment ``presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct.'' Id. at 1512.
41 116 S. Ct. at 1522 (concurring opinion of O'Connor, joined by Chief Justice Rehnquist and by Justices Souter and Breyer).
42 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 384 (1977). But in Linmark Associates v. Township of Willingboro, 431 U.S. 85, 93-94 (1977), the Court refused to accept a times, places, and manner defense of an ordinance prohibiting ``For Sale'' signs on residential lawns. First, ample alternative channels of communication were not available, and second, the ban was seen rather as a content limitation.
43 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771-72 n.24 (1976); Central Hudson Gas & Elec. Co. v. Public Serv. Comm'n, 447 U.S. 557, 571 n.13 (1980).
44 Bates v. State Bar of Arizona, 433 U.S. 350, 379-81 (1977); Central Hudson Gas & Electric Co. v. Public Service Comm'n, 477 U.S. 557, 565 n.8 (1980).
45 Bates v. State Bar of Arizona, 433 U.S. 350, 383-84 (1977); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978). Requirements that advertisers disclose more information than they otherwise choose to are upheld ``as long as [they] are reasonably related to the State's interest in preventing deception of consumers,'' the Court explaining that ``[t]he right of a commercial speaker not to divulge accurate information regarding his services is not . . . a fundamental right'' requiring strict scrutiny of the disclosure requirement. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 & n.14 (1985) (upholding requirement that attorney's contingent fees ad mention that unsuccessful plaintiffs might still be liable for court costs).
46 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1507 (1996) (opinion of Justice Stevens, joined by Justices Kennedy and Ginsburg).
47 See, e.g., Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 465 (1978) (upholding ban on in-person solicitation by attorneys due in part to the ``potential for overreaching'' when a trained advocate ``solicits an unsophisticated, injured, or distressed lay person'').
48 Compare United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) (upholding federal law supporting state interest in protecting citizens from lottery information) and Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2379 (1995) (upholding a 30-day ban on targeted, direct-mail solicitation of accident victims by attorneys, not because of any presumed susceptibility to overreaching, but because the ban ``forestall[s] the outrage and irritation with the . . . legal profession that the [banned] solicitation . . . has engendered'') with Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1995) (striking down federal statute prohibiting display of alcohol content on beer labels) and 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996) (striking down state law prohibiting display of retail prices in ads for alcoholic beverages).
49 Justice Stevens has criticized the Central Hudson test because it seemingly allows regulation of any speech propounded in a commercial context regardless of the content of that speech. ``[A]ny description of commercial speech that is intended to identify the category of speech entitled to less First Amendment protection should relate to the reasons for permitting broader regulation: namely, commercial speech's potential to mislead.'' Rubin v. Coors Brewing Co., 115 S. Ct. 1585, 1595 (1995) (concurring opinion). The Justice repeated these views in 1996: ``when a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands.'' 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1507 (1996) (a portion of the opinion joined by Justices Kennedy and Ginsburg).
