The First Amendment and Advertising

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Presentation transcript:

The First Amendment and Advertising The Supreme Court and Tobacco, Lawyer and Liquor Advertising By DJ Ford

The Central Hudson Test The Court established a four-prong test in Central Hudson Gas & Electric Corp. v. Public Service Commission of NY, 477 U.S. 564 (1980) Why? There was a state regulation banning electric utilities from using all ads promoting the use of electricity. The Court struck down this ban, saying the blanket ban violated the First Amendment

The Prongs To be upheld the ad restriction must pass The Courts test, which entails, in the following order: Determining whether the speech is protected by the First Amendment. Determining whether the government interest is substantial. Determining whether the law advances that interest Determining if the law is more extensive than necessary

Lawyer Advertising Bates v. State Bar of Arizona – 433 U.S. 350 (1977) The Court upheld a ban on price advertising for complex legal services Misleading because lawyers can NOT put a definitive tag how much it’s going to cost. Divorce proceedings, defamation suits, etc. Uncontested divorce proceeding price may be advertised. Why? It may have a fixed price.

Lawyer Advertising In-person advertising also prohibited Person is distraught – divorce, medical malpractice Privacy is invaded Coercion, intimidation May demand an immediate response

Alcohol Advertising The government always passes the second prong of the test – it does have a substantial interest in curbing consumption of alcohol. But remember, the law must pass prong #1 to get to prong #2, and then pass 3 and 4 as well.

Alcohol Advertising Liquormart, Inc. v. Rhode Island – 517 U.S. 484 (1996) Struck down an RI ban on alcohol price advertising The state failed to prove that without the ban, alcohol sales and consumption would increase Rubin v. Coors Brewing Co. - 514 U.S. 476 (1995) Struck down a ban on providing alcohol content on the label Failed prong #3

Tobacco Advertising Lorillard Tobacco Co v. Reilly – 527 U.S. 173 (1999) Struck down a MA law prohibiting outdoor tobacco ads within a 1,000 ft. radius of all schools or playgrounds Failed prong #4 The Court struck down another MA law prohibiting indoor tobacco ads lower than five feet from the ground. Failed both #3 and #4.

Justice O’ Connor “Not all children are less than five feet tall, and those that are certainly have the ability to look up and take in their surroundings.”