Commercial Speech

Definition

Speech which promotes at least some type of commerce.

Overview

Under Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980), commercial speech is less protected under the First Amendment than other forms of speech. 

Regulating Commercial Speech

Central Hudson Test

Under Central Hudson, there is a four-part test for whether governmental regulation of commercial speech is constitutional.

  1. First, in order for the commercial speech to be considered as protected speech under the First Amendment, the speech must concern lawful activity, and the speech must not be misleading. 
    1. If this step is met and the commercial speech is considered speech, then the court will use steps 2-4 below to determine whether the government regulation is constitutional
  2. Second, the alleged governmental interest in regulating the speech must be substantial
  3. Third, the regulation must directly advance the governmental interest asserted
  4. Fourth, the regulation must not be more extensive than is necessary to serve the interested expressed in step 3

Compelling Commercial Speech 

In certain circumstances, the government may lawfully compel certain commercial speech. 

Zauderer Standard

In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the Supreme Court held that a state may situationally compel commercial speech without violating the advertiser's First Amendment rights. Specifically, a state may require an advertiser to disclose certain information "as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers."

Further Reading

For more on commercial speech, see this Florida State University Law Review article, this Harvard Law Review article, and this Washington University Journal of Law and Policy article.