Freedom of Speech

Commercial speech, usually in the form of advertising, enjoys some First Amendment protection, but not to the same degree as that which is given to noncommercial forms of expression. Generally, the First Amendment protects commercial speech that is not false or misleading and that does not advertise illegal or harmful activity. Commercial speech may be restricted only to further a substantial government interest and only if the restriction actually furthers that interest. In Central Hudson Gas & Electric Co. v. Public Service Commission, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980), the U.S. Supreme Court held that a statute banning promotional advertising by PUBLIC UTILITIES was unconstitutional. That case set forth a "general scheme for assessing government restrictions on commercial speech." Commercial speech will be protected by the First Amendment if (1) it concerns lawful activity and is not misleading; (2) the asserted government interest is not substantial; (3) the regulation does not directly advance the asserted governmental interest; and (4) the regulation is more extensive than is necessary to serve that interest. The U.S. Supreme Court has struck down bans on drug advertising, (Thompson v. Western States Medical Center,, 535 U.S. 357, 122 S. Ct. 1497, 152 L. Ed. 2d 563 (2002) and tobacco advertising, Lorillard Tobacco Corp. v. Reilly,, 533 U.S. 525, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001), using this test.