Central Hudson Gas and Electric Corp. v. Public Service Commission of NewYork

Justices Brennan, Blackmun, and Stevens all concurred in the judgment, but they placed a finer point on questions of restricting free speech. Brennan, who joined in the opinions of his colleagues Blackmun and Stevens, cited the vagueness of the commission's distinction between promotional and informational or institutional advertising.

Blackmun, while agreeing that the four-part test was adequate in situations where the commercial speech was "misleading or coercive," did not think it sufficient in situations such as the one at hand, in which a government limited commercial speech for the purposes of creating a specific economic outcome. Comparing the case at hand to the Court's 1976 ruling in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Blackmun said that the four-part test would appear to make it permissible for a government to limit commercial speech if by so doing it served a compelling economic purpose. On the contrary, Blackmun reasoned, if the government has such an interest, it should make laws which deal directly with the issue--e.g., a law limiting electrical consumption--rather than abridging the freedom of commercial speech.

Justice Stevens likewise questioned the broad manner in which he believed the four-part test might be applied. Since, as the Court had stated, commercial speech was deserving of less protection that other forms of speech, he was concerned that the definition of commercial speech be as limited as possible in order that other forms would not accidentally be included under that heading as well. Therefore, he said, he could only concur in the result "because I do not consider this a `commercial speech' case."

Nor did Justice Rehnquist, the Court's lone dissenter, though on an entirely different basis. Rehnquist disagreed with the Court's analysis for several reasons, the first of which was that he did not believe a state-created monopoly was entitled to free-speech protection under the First Amendment. Therefore, the commission's order was in his view an economic regulation rather than a regulation of speech. In line with his more sympathetic view toward the rights of states, he held that "the Court, in reaching its decision, improperly substitutes its own judgment for that of the state in deciding how a proper ban on promotional advertising should be drafted."