Agenda for Today

• The Commercial Speech Doctrine: Its Evolution from

Valentine

to

Va. Pharmacy Board

• FA Protection Extended to Ad:

Va. Pharmacy Bd. v. Va. Citizens Consumer Council

(1976) overrules

Valentine

• The

Central Hudson

Test:

Central Hudson Gas & Electric v. Public Service Comm’n

(1980) • Refinement of the

Central Hudson

Test:

Bd. of Trustees of State U. of N.Y. v. Fox

(1989) • Revolutionary Rethinking of the Commercial Speech Doctrine:

44 Liquormart v. R.I.

(1996)

The Commercial Speech Doctrine: Its Evolution

• No FA protection of

commercial

ad until the ‘70s:

Valentine v. Chrestensen

(1942) •

Sullivan

(1964) implies that ad cannot claim “talismanic immunity” from FA scrutiny • Protection of commercial speech emerging in the ‘70s--

Pittsburgh Press v. Pittsburgh Comm’n on H.R.

(1973);

Bigelow v. Va.

(1975)--FA on “free flow of information”

Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council (1976)

• Is ad protected by FA’s free speech guarantee? • Yes, our economy depends on the “free flow of

commercial

information.” Let consumers exercise their right to know; more speech is better. No paternalistic ad reg warranted.

• But ad can be subject to TPM restrictions, and false and illegal ad can be banned. Why is ad less protected than political speech? See n.24.

The Central Hudson Test

• 1. Does the ad involve

deception

products or services?

or

illegal

– Yes (the ad can be banned) – No (move to the second question) • 2. Does the government have a

substantial

interest in restricting the ad?

– Yes (move to the third question) – No (the regulation is unconstitutional)

The Central Hudson Test

• 3.

• 4.

Does the regulation

directly

advance the governmental interest?

– Yes (move to the fourth question) – No (the regulation is unconstitutional) Is the regulation not broader than necessary? [Is there a “reasonable fit” between the ends of the regulation and the means employed:

Board of Trustees v. Fox

(1989)] – Yes (the regulation is constitutional) – No (the regulation is unconstitutional)

Bd. of Trustees of State Univ. of N.Y. v. Fox (1989) on the

Central Hudson

Test

• Does the 4th part, i.e., “not more extensive than necessary,” of the

Central Hudson

test require the “least restrictive means”? • No, it requires a “reasonable fit” between the ends of the ad reg and the means used.

• Why not the least restrictive means? Because ad not deserving full FA. protection

44 Liquormart v. R.I. (1996): “revolution in the making”?

• Indicating willingness to apply “strict scrutiny” to ad regulations – Distinguish

regulation

of false ad from total

ban

on truthful ad (Stevens, Kennedy, Souter & Ginsburg, ) – Overrule

Central Hudson

(Thomas) – Doubt

Central Hudson

(Scalia) • Disavowing

Posadas de P.R.

as too paternalistic (Stevens, Kennedy, Thomas & Ginsburg) • Applying the “closer look” standard under

Central Hudson

(O’Connor, Rehnquist, Souter & Breyer)

Lorillard Tobacco Co. v. Reilly (2001)

• Moving a step further toward abandoning

Central Hudson

?

– Commercial speech more similar to non commercial speech under First Amendment • But the Court not ready to overrule

Central Hudson

– No pressing need to break new ground if the Court applies

Central Hudson

to

protect

commercial speech