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Understanding Commercial Expression: Legal Protections and Restrictions in Advertising

This article explores the evolution of commercial expression in the context of U.S. law, focusing on how advertisements are treated under the First Amendment. Historically viewed as unprotected speech, rulings like Valentine v. Chrestensen (1942) laid the groundwork for the current understanding where truthful advertising does enjoy protection but may still be regulated. Key cases, including Central Hudson Gas & Electric Corp. v. Public Service Commission (1980), highlight the criteria for legal restrictions on commercial speech. Issues of public interest, misleading information, and lawful activities are examined in detail.

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Understanding Commercial Expression: Legal Protections and Restrictions in Advertising

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  1. Advertising and Commercial Expression JOUR3060 Communication Law & Regulation

  2. Advertising and Commercial Expression • Traditional View: advertisements are NOT protected speech • Current View: truth in advertising, advertisements are protected under 1st Amendment but can be restricted

  3. ADVERTISEMENTS AND COMMERCIAL EXPRESSION: TRADITIONALLY • Valentine v. Chrestensen (1942): Commercial speech not protected under 1st Amendment • Breard v. City of Alexandria (1951):door-to-door solicitations • *religious solicitations protected under 1st Amendment • FTC v. Colgate-Palmolive (1965)truth in advertising

  4. FTC v. Colgate-Palmolive (1965)

  5. ADVERTISEMENTS AND COMMERCIAL EXPRESSIONS “Public Interest” Test: - Is the information truthful and not misleading? • Does the advertisement concern a legal/lawful activity? - Advertising defined: that which materially affects a corporation’s business, property, assets - Issue: Who is speaking and what speech is protected? Speech of artificial persons protected

  6. ESTABLISHING FIRST AMENDMENT PROTECTION FOR ADVERTISEMENTS • New York Times v. Sullivan (1964) • Bigelow v. Commonwealth of Virginia (1975) establish 1st Amend protection for ads • Virginia Board of Pharmacy v. Virginia Citizens Consumer Council (1976) first application of 1st Amendment protection of commercial expression • First National Bank of Boston v. Bellotti (1978) Corporations’ campaign contributions = protected speech

  7. CAN PROTECTED COMMERCIAL EXPRESSION BE RESTRICTED?? • Central Hudson Gas & Electric Corp v. Public Service Commission (1980) • Central Hudson Test: determine whether ad restriction is permissible; Is the advertising expression protected by the 1st Amendment? • 1) is the ad lawful and not misleading? • 2) is the asserted government interest in the regulation substantial? • police power in public health, safety, welfare • 3) does the regulation directly advance that government interest? • 4) is the regulation not more extensive than necessary? • not least restrictive means

  8. CAN PROTECTED COMMERCIAL EXPRESSION BE RESTRICTED?? • Gambling, Direct Mail, Alcohol, Cigarettes • Condado Holiday Inn v. Tourism Company of Puerto Rico (1986) gambling • Greater New Orleans Broadcasting v. US (1999) gambling • Florida Bar v. Went-For-It Inc (1995)direct mail • 44 Liquormart v. Rhode Island (1996)alcohol; more protection under Central Hudson • Lorillard Tobacco Co. v. Reilly (2001) cigarettes

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