Commercial Speech and First Amendment Protection

1. Lecture 20Chapter 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 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) • 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. Public Service Commission of New York (1980) • Background • The New York PSC wanted to conserve energy after some issues in 1973-74 • 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. 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. 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. 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) • 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