Case Categories: Commercial Speech

Commercial speech is a form of protected communication under the First Amendment, but it does not receive as much free speech protection as forms of noncommercial speech, such as political speech.

One important test developed by the Court to determine protection for commercial speech is the Central Hudson test. With this test, courts determine how far the regulation of commercial speech can go before it runs afoul of the First Amendment.

If the speech is fraudulent or illegal, the government can freely regulate it without First Amendment constraints. If it is not, then the court must ask whether the asserted governmental interest is substantial. If both questions are answered yes, the court must determine whether the regulation directly advances the governmental interest asserted and whether it is more extensive than is necessary to serve that interest. If the regulation is narrowly tailored to secure the interest, then the regulation of the commercial speech will be upheld.

Following are several Supreme Court cases in which commercial speech under the First Amendment was at issue.

• 44 Liquormart, Inc. v. Rhode Island (1996)

  44 Liquormart v. Rhode Island (1996) advanced First Amendment protections for commercial speech when it struck down a state law banning the advertising of...

• Barr v. American Association of Political Consultants (2020)

  The Supreme Court on July 6, 2020, struck down a provision in a robocall law that allowed government to use robocalls to collect debt, saying it was an...

• Bigelow v. Virginia (1975)

  Bigelow v. Virginia (1975) involved an ad printed for an abortion clinic and established that at least some commercial advertising should receive First...

• Board of Trustees of State University of New York v. Fox (1989)

  In Board of Trustees of State University of New York v. Fox (1989), the Supreme Court said a ban on private commerce in state university facilities was “‘...

• Borgner v. Florida Board of Dentistry (2002)

  The Court in Borgner v. Florida Board of Dentistry (2002) declined to review a ruling upholding a law requiring dentists to include disclaimers in ads for...

• Carey v. Population Services International (1977)

  Carey v. Population Services International (1977) struck down a law that banned contraceptive advertising. The Court said the advertising was protected by the...

• Central Hudson Gas and Electric Corp. v. Public Service Commission (1980)

  Central Hudson Gas and Electric Corp. v. Public Service Commission (1980) clarified First Amendment protection of commercial speech, determining when it could...

• City of Cincinnati v. Discovery Network (1993)

  City of Cincinnati v. Discovery Network (1993) held that Cincinnati’s restrictions on the distribution of commercial flyers in news racks violated the First...

• Edenfield v. Fane (1993)

  In Edenfield v. Fane (1993), the Supreme Court said direct solicitation of clients was within the First Amendment rights of certified public accountants...

• Friedman v. Rogers (1979)

  In Friedman v. Rogers (1979), the Court struck down a First Amendment challenge to a Texas law that prohibited optometrists from advertising under a trade name...

• Glickman v. Wileman Brothers and Elliott, Inc. (1997)

  In Glickman v. Wileman Brothers and Elliott, Inc., the Court held that requiring farmers to contribute to the cost of generic advertising did not abridge their...

• Iancu v. Brunetti (2019)

  In this Iancu v. Brunetti, the U.S. Supreme Court in 2019 invalidated a provision of federal trademark law that prohibited “immoral or scandalous” marks....

• Ibanez v. Florida Department of Business and Professional Regulation Board (1994)

  Ibanez v. Florida Department of Business and Professional Regulation Board (1994) held that the First Amendment takes precedence over regulatory agencies in...

• Linmark Associates, Inc. v. Township of Willingboro (1977)

  Linmark Associates, Inc. v. Township of Willingboro (1977) invalidated an ordinance that limited "For Sale" signs in neighborhoods on First Amendment grounds...

• Lorillard Tobacco Co. v. Reilly (2001)

  In Lorillard Tobacco Co. v. Reilly (2001), the Supreme Court invalidated state advertising restrictions on tobacco products, saying they violated the First...

• Los Angeles Police Department v. United Reporting Publishing Co. (1999)

  Los Angeles Police Department v. United Reporting Publishing Co. (1999) said banning release of arrestee information for commercial purposes didn't violate the...

• Matal v. Tam (2017)

  In Matal v. Tam (2017), the Supreme Court ruled that a federal law prohibiting disparaging trademark names was unconstitutional under the First Amendment...

• Nike v. Kasky (2003)

  Nike v. Kasky (2003) raised, but did not resolve, contemporary issues regarding First Amendment protection for corporate speech in matters of public concern...

• Pacific Gas and Electric Co. v. Public Utilities Commission (1987)

  Pacific Gas and Electric Co. v. Public Utilities Commission (1986) established the right of a corporation as a publisher to refuse to print messages with which...

• Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973)

  Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973) found that banning employment discrimination did not violate the First Amendment...

• Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986)

  The Court later reversed their stance in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986), which dealt with First Amendment rights of...

• Rubin v. Coors Brewing Co. (1995)

  Rubin v. Coors Brewing Co. (1995) said that a law restricting beer labels from displaying alcohol content was an infringement of First Amendment commercial...

• Sorrell v. IMS Health (2011)

  Sorrell v. IMS (2011) invalidated a state law prohibiting the sale of pharmacy data as an impermissible restriction on free speech guaranteed in the First...

• Thompson v. Western States Medical Center (2002)

  Thompson v. Western States Medical Center (2002) ruled that a federal statutory prohibition on the advertisement of compounded drugs violated the First...

• United States v. United Foods, Inc. (2001)

  In 2001, the Supreme Court overturned a federal program that required mushroom producers to subsidize generic advertising for mushrooms. In United States v....

• Valentine v. Chrestensen (1942)

  Valentine v. Chrestensen (1942) ruled that commercial speech is not protected by the First Amendment. It has made assessing commercial speech under the First...

• Village of Hoffman Estates v. Flipside (1982)

  Village of Hoffman Estates v. Flipside (1982) upheld an ordinance regulating the sale of drug paraphernalia against charges that it was unconstitutionally...

• Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976)

  In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., the Court ruled that purely commercial speech deserves First Amendment...