Commercial speech refers to any speech which promotes at least some type of commerce. As established in Central Hudson v. Public Svn. Comm’n, commercial speech is less protected under the First Amendment than other forms of speech.
Central Hudson established a four-part test for whether governmental regulation of commercial speech is constitutional.
- First, in order for the commercial speech to be considered protected speech under the First Amendment, the speech must concern lawful activity and the speech must not be misleading.
- 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
- Second, the alleged governmental interest in regulating the speech must be substantial
- Third, the regulation must directly advance the governmental interest asserted
- Fourth, the regulation must not be more extensive than is necessary to serve the interested expressed in step 3
For example, Linmark Associates v. Township of Willingboro established that a township could not prevent residents from placing “For Sale” / “Sold” signs on their lawns because preventing the flow of truthful information was more extensive than necessary to serve the township’s interest of preventing further neighborhood members from leaving.
In addition to being restricted, commercial speech can also be compelled. In Zauderer v. Office of Disc. Counsel, 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."
[Last updated in August of 2022 by the Wex Definitions Team]