The First Amendment & Commercial Speech: What Does that Even Mean?
The right to free speech guaranteed by the First Amendment[i] is an extremely popular topic in academia, the legal field, and general public discourse. This right can be conceptually compartmentalized or broken down into subsets such as freedom of expression, the right not to make speech, and hate speech. One of the lesser-discussed compartments of the right to free speech is commercial speech[ii].
The United States Supreme Court first extended commercial speech protection under the First Amendment in Bigelow v. Virginia in 1975. [iii] The Court ultimately declared that, “the fact the particular advertisement in appellant’s newspaper had commercial speech aspects or reflected the advertiser’s commercial interests did not negate all First Amendment guarantees.” [iv] One year later, in 1976, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, the Court reaffirmed the proposition that commercial speech was protected by the First Amendment. [v] And by 1985, in Zauderer v. Office of Disciplinary Counsel, the Court declared that there was “no longer any room to doubt that what has come to be known as commercial speech” is entitled to the protection of the First Amendment.” [vi]
This subset of the First Amendment merits further discussion because of a conundrum it currently faces: What is commercial speech? The definition of commercial speech is such an interesting topic because whether or not speech is defined as such determines the amount of protection the speech is accorded.
Commercial speech is protected, but that does not mean it can never be regulated. [vii] The First Amendment merely protects commercial speech from “unwarranted governmental regulation” and it “accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.” [viii] Regulations of commercial speech are only protected at an immediate scrutiny level through a four-factor test laid out by the United States Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service. [ix] Defining expression as commercial speech, or in the alternative as not commercial speech, will determine whether the speech is protected at an intermediate level of scrutiny or another level of scrutiny.
The United States Supreme Court has given various definitions of commercial speech. In 1976 in Virginia State Board of Pharmacy, the Court defined commercial speech as speech that “propose[s] a commercial transaction”. [x] Four years later in 1980 in Central Hudson, the Court defined it as an “expression related solely to the economic interests of the speaker and its audience.” [xi] Finally, in 1983, in Bolger v. Youngs Drug Products Corp. the Court articulated that commercial speech has three characteristics: “(1) It is an advertisement of some form, (2) it refers to a specific product, and (3) the speaker has an economic motivation for the speech.”[xii]
Yet, despite even this specific definition, what exactly encompasses commercial speech is still unclear. For example, are image advertisements commercial speech? Are scientific health studies funded by tobacco companies commercial speech? The Court has yet to fully analyze what exactly this three factor entails or set strong precedent as to what is and what is not commercial speech under this test.
Regardless, the Bolger definition of commercial speech, through its three factor test, is a well though out approach. As articulated in the February 2013 edition of Michigan Law Review, “ the flexibility of the test allows courts to avoid undesirable results and overinclusivity problems” and “with a factor based test, courts should have less anxiety about expanding the “box” of speech “proposing a commercial transaction.”[xiii] While there is currently uncertainty, future cases should give more guidance to what commercial speech actually is in this effective framework.
[i] USCA CONST Amend. I
[ii] Va. State Bd. of Pharmacy v. Va. Citizen’s Consumers Council, Inc., 425 U.S. 748 (1976)
[iii] Bigelow v. Virginia, 421 U.S. 809 (1975)
[iv] Id. at 818
[v]Va. State Bd. of Pharmacy, 425 U.S. at 770
[vi] Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985)
[vii]Va. State Bd. of Pharmacy, 425 U.S. at 770
[viii]Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561-564 (1980)
[x] Erwin Chemerinsky, Constitutional Law: Principles and Policies 1125 (4th ed. 2011)
[xii] Id.; Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983)
[xiii] Kathryn E. Gilbert, Commercial Speech in Crisis: Crisis Pregnancy Center Regulations and Definitions of Commercial Speech, 111 Mich. L. Rev. 591, 605 (2013)