The Commercial Speech Doctrine: Its Evolution from Valentine to Va. Pharmacy Board FA Protection Extended to Ad: Va. Pharmacy Bd. v. Va. Citizens Consumer Council (1976) overrules Valentine The Central Hudson Test: Central Hudson Gas & Electric v. Public Service Comm’n (1980) Refinement of the Central Hudson Test: Bd. of Trustees of State U. of N.Y. v. Fox (1989) Revolutionary Rethinking of the Commercial Speech Doctrine: 44 Liquormart v. R.I. (1996) Agenda for Today

The Commercial Speech Doctrine: Its Evolution No FA protection of commercial ad until the ‘70s: Valentine v. Chrestensen (1942) Sullivan (1964) implies that ad cannot claim “talismanic immunity” from FA scrutiny Protection of commercial speech emerging in the ‘70s--Pittsburgh Press v. Pittsburgh Comm’n on H.R. (1973); Bigelow v. Va. (1975)--FA on “free flow of information”

Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council (1976) Is ad protected by FA’s free speech guarantee? Yes, our economy depends on the “free flow of commercial information.” Let consumers exercise their right to know; more speech is better. No paternalistic ad reg warranted. But ad can be subject to TPM restrictions, and false and illegal ad can be banned. Why is ad less protected than political speech? See n.24.

The Central Hudson Test 1.Does the ad involve deception or illegal products or services? – Yes (the ad can be banned) – No (move to the second question) 2.Does the government have a substantial interest in restricting the ad? – Yes (move to the third question) – No (the regulation is unconstitutional)

The Central Hudson Test 3.Does the regulation directly advance the governmental interest? – Yes (move to the fourth question) – No (the regulation is unconstitutional) 4.Is the regulation not broader than necessary? [Is there a “reasonable fit” between the ends of the regulation and the means employed: Board of Trustees v. Fox (1989)] – Yes (the regulation is constitutional) – No (the regulation is unconstitutional)

Bd. of Trustees of State Univ. of N.Y. v. Fox (1989) on the Central Hudson Test Does the 4th part, i.e., “not more extensive than necessary,” of the Central Hudson test require the “least restrictive means”? No, it requires a “reasonable fit” between the ends of the ad reg and the means used. Why not the least restrictive means? Because ad not deserving full FA. protection

44 Liquormart v. R.I. (1996): “revolution in the making”? Indicating willingness to apply “strict scrutiny” to ad regulations –Distinguish regulation of false ad from total ban on truthful ad (Stevens, Kennedy, Souter & Ginsburg, ) –Overrule Central Hudson (Thomas) –Doubt Central Hudson (Scalia) Disavowing Posadas de P.R. as too paternalistic (Stevens, Kennedy, Thomas & Ginsburg) Applying the “closer look” standard under Central Hudson (O’Connor, Rehnquist, Souter & Breyer)

Lorillard Tobacco Co. v. Reilly (2001) Moving a step further toward abandoning Central Hudson? –Commercial speech more similar to non- commercial speech under First Amendment But the Court not ready to overrule Central Hudson –No pressing need to break new ground if the Court applies Central Hudson to protect commercial speech