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The First Amendment and Advertising

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)

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The First Amendment and Advertising

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

  2. 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

  3. 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

  4. 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.

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

  6. 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.

  7. 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

  8. 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.

  9. 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.”

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