User:Calliopejen1/WIP/Commercial speech

History
The first Supreme Court cases addressing the First Amendment status of commercial speech were Valentine v. Chrestensen, 316 U.S. 52 (1942), and Breard v. City of Alexandria, 341 U.S. 622 (1951). (In earlier cases involving commercial advertisers, the Court had managed to avoid the question of whether advertising merited protection under the First Amendment. ) In Valentine and Breard, the Court upheld ordinances forbidding commercial leafletting in the streets and door-to-door sales solicitations, respectively. These cases were interpreted to exclude commercial speech generally from the realm of First Amendment protection, and were widely criticized by commentators. Neither case offered a rationale for this exclusion, and neither defined commercial speech.

The Supreme Court's next two commercial speech cases, decided in the early 1970s, showed the Court's growing uneasiness with the Chrestensen doctrine. In Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973), the Court addressed the legality of an injunction on gender-segregated classified ads for employment. In upholding the injunction, the court "seemed unwilling to rely exclusively on the Chrestensen doctrine," instead analogizing the segregated ads to ads proposing illegal transactions. The next case, Bigelow v. Virginia, involved a newspaper convicted of violating a law forbidding the encouragement of abortion (Bigelow predated Roe v. Wade), by publishing an advertisement for an out-of-state abortion referral clinic that operated legally under that state's laws. The Court's ruling was chiefly based on the constitutional right to travel, but the Court also discussed the application of the First Amendment to commercial speech generally. The court emphasized that the "rather mundane advertisement conveyed newsworthy information to a wide variety of readers with no personal interest in the service, including those interested in abortion law reform.

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 428 U.S. 748 (1976), decided one year after Bigelow, marked the end of the Chrestensen doctrine. In Virginia Board, the Court held that the First Amendment applied to purely commercial speech. The court emphasized that consumers had a strong interest in obtaining product information, and that the public interest was served by the free flow of commercial information, which would lead to price competition and contribute to optimal allocation of resources.

Current law
Cases since Virginia Board have outlined the contours of First Amendment protection for commercial speech.

Defining "commercial speech"
The Supreme Court has yet to define the exact border between commercial and non-commercial speech. Without question, speech that directly proposes a commercial transaction qualifies as commercial speech. Yet not all advertisements are commercial speech. For example, some advertisements, such as campaign ads, are political speech. And other advertisements include informational content. This latter category has presented the Court with some difficulty.

Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), is the leading case on the distinction between commercial and non-commercial speech. The advertisements at issue in Bolger were two pamphlets: one discussed the use of condoms generally and described the manufacturer's condom offerings in detail, the other discussed condoms as a means of preventing sexually transmitted infections generally without mention of the manufacturer at all, apart from a small identification of the publisher on the last page. The Bolger court identified three factors that weigh in favor of finding that speech is commercial: the speech is an advertisement, the speech refers to a specific product, and the speech was economically motivated. No one factor is determinative. Though the Court noted that the pamphlets in Bolger were not mere "proposals to engage in commercial transactions," but it still held that both pamphlets were commercial speech because all three factors were present. That the pamphlets addressed issues of public concern did not exclude them from the realm of commercial speech; the Court noted that the company could also make such speech in a non-commercial context.

Regulating commercial speech: the Central Hudson test
Though Virginia Board established that commercial speech is entitled to First Amendment protection, the extent of protection for commercial speech is less than that of non-commercial speech.

Special cases
Separate bodies of caselaw have arisen in two particular commercial speech contexts: advertising of vices such as cigarettes, alcohol, and gambling, and advertisements by lawyers.