1. Speech Clauses VIII (Commercial Speech)
Lecture 20 Chapter 5
Speech Clauses VIII
(Commercial Speech)

2. This Lecture More on the First Amendment Pages 276-284
Commercial Speech
Bates v. State Bar of Arizona (1977)
Central Hudson Gas and Electric Corporation v. Public Service Commission of New York (1980)

3. Commercial Speech
How much First Amendment protection does commercial speech receive?
Is it more related to commerce or speech?
Is political speech the main point of the First Amendment?
How much can government regulate?
Valentine v. Chrestensen (1942)
Government can ban the distribution of hand bills for commercial goods and services
First Amendment does not protect “purely commercial advertising”
However, this begins to change under the Burger Court

4. Bigelow v. Virginia (1975) Bigelow v. Virginia (1975)
The publisher of a newspaper in Charlottesville ran an ad for a service that allowed for women to go to New York to obtain an abortion
It was illegal (at the time) in Virginia
Virginia law prohibited advertisements regarding abortion
Blackmun, J. for a 7-2 Court, reversed the conviction
The fact that speech is commercial does not take away its First Amendment guarantees
The ad was not deceptive, fraudulent or misleading
This ad was in the public interest
The decision was also two years after the decision in Roe, and had the same lineup of justices in this case

5. Virginia State Board of Pharmacy v
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976)
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976)
Virginia law prohibited pharmacies from advertising prescription prices
A pharmacist who violated this could have their license suspended
Virginia said there was only commercial speech here
A 7-1 Court by Blackmun, J. overturned the law (Rehnquist, J. dissenting)
Even if speech is for the purpose of making a profit or soliciting, it is protected
There was a legitimate interest in professionalism among the profession, but it can’t do so by hiding this information from the public about prices

6. Linmark Associates v. Township of Willingboro (1977)
Case from Burlington County, New Jersey
This town had a history of racial discrimination in housing before this case
The town passed a law prohibiting “For Sale” signs in lawns
There was a few goals maintain a white majority, maintain property values, and to stop blockbusting
The Court ruled unanimously against the law, by Marshall, J.
(Rehnquist, J. did not participate in the decision)
Following the Virginia case, the Court ruled one could not hide information from people
The remedy is more speech

7. Bates v. State Bar of Arizona (1977)
Background
Bates and Van O’Steen graduated from Arizona State and opened a legal clinic
It was for low and moderate income people
They were not doing well financially
They decided to put an ad in a local newspaper
However, the State Bar prohibited this
The State Bar initiated disciplinary proceedings against them and the Arizona Supreme Court affirmed, but lessened the punishment to censure
They also appeal on an argument related to the Sherman Anti-Trust Act, but lose

8. Bates v. State Bar of Arizona- II
Arguments
For Bates
This is content discrimination
Consumers have the right to know about their right to legal representation
The ban serves no important state interest
For The Arizona Bar
Commercial speech has the lowest protections
There is a long tradition of this
This could lead to unnecessary future lawsuits
It protects the industry against fraud and deceptive
Protects the dignity of the legal profession
Prices can be misleading due to experience and expertise levels

9. Bates v. State Bar of Arizona- III
Blackmun, J. for a 5-4 Court
They take on Arizona’s arguments for the ban on advertising
Will not affect professionalism
The public has a right to this information
It will not lead to more litigation
Competition will eat up the costs of advertising in rates consumers get choices
Advertising cannot be banned, but it can be regulated by the bar
Abusing attorneys can be sanctioned by the bar
The bar will have to police false or misleading advisements
Was Blackmun proven right to wrong?

10. Bates v. State Bar of Arizona- IV
Rehnquist, J. dissenting
There were two other concur/dissents by Powell, J. and Burger, J. joined by Stewart
He feels that commercial speech is not protected by the First Amendment
Makes a slippery slope argument
Case-by-case adjudication of claims (more cases!)
Rehnquist had also been a practicing attorney in Arizona before he joined the Nixon Administration

11. Other Restrictions on Commercial Speech
The following restrictions were struck down:
Metromedia, Inc. v. San Diego (1981)
Banning billboards
Bolger v. Youngs Drug Products Corporation (1983)
Banning advertising of contraceptives by mail
Consolidated Edison Company of New York, Inc. v. Public Service Commission of New York (1980)
Banning a public utility from sending statements of the company’s positions on public policy in with their utility bills

12. Central Hudson Gas and Electric Corporation v
Central Hudson Gas and Electric Corporation v. Public Service Commission of New York (1980)
Background
The New York PSC wanted to conserve energy after some issues in
They prohibited public utilities from doing any advertising promoting more use of electricity
They continued the policy after the energy shortage ended
This was in line with federal policy on energy conservation
The New York Court of Appeals found that the governmental interest in energy conservation trumped the company’s commercial speech rights

13. Central Hudson Gas and Electric Corporation v
Central Hudson Gas and Electric Corporation v. Public Service Commission of New York- II
Arguments
For the Power Company
Previous decisions would say this is protected speech
State regulations are overbroad and vague
Non-utilities are not subject to this regulation
For New York PSC
Commercial speech has less protection than non-commercial speech
The state has an important interest in energy conservation
The regulation is tailored to the state interest
The PSC can only regulate utilities

14. Central Hudson Gas and Electric Corporation v
Central Hudson Gas and Electric Corporation v. Public Service Commission of New York- III
Powell, J. for an 8-1 Court
We finally get a test on commercial speech by the Court!
1) Is the expression protected by the First Amendment?
For commercial speech, it must: a) concern lawful activity and b) not be misleading
2) Is the interest asserted by the government substantial?
If yes to the first two, then:
3) Does the regulation directly advance the government interest that was asserted?
4) Is it no more extensive than necessary to serve that interest?
Must also be a reasonable fit between the means and the ends of the regulation
The state fails on #4
A more limited restriction might achieve the same means

15. Central Hudson Gas and Electric Corporation v
Central Hudson Gas and Electric Corporation v. Public Service Commission of New York- IV
Rehnquist, J. dissenting
There were three concurring opinions as well by Blackmun, Brennan and Stevens
He thinks the Court is substituting their judgment for that of the PSC
He continues to oppose commercial speech receiving First Amendment protections

16. 44 Liquormart, Inc. v. Rhode Island (1996)
The Court, by Stevens, J. struck down a Rhode Island law prohibiting the advertising or reporting of the cost of alcohol in the state
He did recognize that the commercial speech has less protection
Called into question the Court’s decision in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986), which had upheld a law banning the advertisement of gambling on the island
This ended up being a total ban on information, so the state did not have enough interest here

17. Next Lecture The End of the Chapter! Pages 284-292
Freedom of Association
Boy Scouts of American v. Dale (2000)
Ban on gay scouts