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					Constitutional Law II

   Commercial Speech
Early years
     Valentine v. Christensen (1942)
           commercial advertising not protected by 1st Am
     NY Times v. Sullivan (1964)
           fact that statements appeared in paid ad in
            commercial newspaper, irrelevant
     Bigelow v. Virginia (1975)
           advertising that went beyond merely proposing
            a commercial transaction (here, abortion
            services) was protected
           “factual material of clear `public interest’”
Fall 2006                   Con Law II                2
VA Pharmacy Bd. v. VCCC                         (1976)
     Drug price advertising prohibited. Why?
           advertising is unprofessional
           protect consumers from aggressive retailing
           protect pharma/cies from price competition
     Who benefits from advertising drug prices?
           Pharmacies (interest is purely commercial)
           Consumers (same)

Fall 2006                   Con Law II                   3
VA Pharmacy Bd. v. VCCC                                             (1976)
     Is advertising protected (1st Amd) speech?
           No. It is solicitation of a transaction, and can
            be regulated to same extent as the transaction
             Note: trade is very heavily regulated by states/fed
           Yes. It requires intermediation by listener; no
            instrumental/interpellative effects
           Yes. It serves 1st Amd values as other speech
             self-expression/autonomy (not likely with corporations)
             search for knowledge (marketplace of ideas/prices)
                  Is this less valuable than scientific, literary, other knowledge?
             political debate
                  To some extent, especially in our political economy.
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VA Pharmacy Bd. v. VCCC                                  (1976)
    If protected speech, to what degree?
           Lesser degree (intermediate) because:
              Proposes transactions that are heavily regulated
              Only partially implicates 1st Amd principles
              Commercial speech is robust (profit motive) and
               doesn’t need as strong judicial protection
    Intermediate scrutiny:
           ENDS: Substantial state interest
           MEANS: Restriction must be proportional to the interest
              Must directly advance the interest
              Least restrictive regulation

Fall 2006                          Con Law II                 5
VA Pharmacy Bd. v. VCCC                             (1976)
     What is (less-protected) Commercial Speech?
           speech that does no more than propose a
            commercial transaction? Bolger v. Youngs (1983)
             e.g., charitable fund raising?
           expression related solely to economic interests
            of speaker and audience Central Hudson (1980)
     What commercial speech is protected?
           Truthful facts (opinions, etc)
           False statements
           Deceptive or misleading advertising
           Promotion of illegal activities (illegal drugs)
Fall 2006                      Con Law II                 6
Central Hudson v. PSC                    (1980)
    Ban on electric co. promotional advertising
    State interest: energy conservation
      Assumption: advertising stimulates consumption
      Assumption: government must protect
       consumers from themselves
    Note: it is the speech that is protected, not
    the speaker
        Consumers’ 1st amd. right to receive info

Fall 2006                 Con Law II                 7
Central Hudson v. PSC                                   (1980)
     4-part test for commercial speech:
1. Is the speech protected                 1. Truthful ads give useful
   (e.g., truthful)?                          information to consumers
2. Is the gov’t interest                   2. Interest in energey con-
   substantial?                               servation is substantial
3. Does restriction directly               3. Yes. Ad ban may reduce
   serve that interest?                       demand for more energy
4. Is the law more restrictive             4. Yes. It is overbroad; not
   than necessary?                            all banned ads would
                                              undermine conservation
Is this really intermediate scrutiny,
or strict scrutiny? Protecting                A more carefully tailored (less
economic interests under the 1st              effective?) regulation of utility
amend rather than due process?                advertising might survive
Fall 2006                     Con Law II                                 8
Central Hudson v. PSC     (1980)

Fall 2006    Con Law II            9
Attorney Advertising
     Bates v. State Bar (1977)
           Advertising prices of routine legal services
             protected under Virginia Pharmacy
     Ohralik v. Ohio State Bar (1978)
           Solicitation of standard legal employment
             not protected; state had substantial interest in the
              protection of the legal system and potential litigants
     In re Primus (1978)
           Solicitation of law reform cases (impact litigation)
             more than mere commercial speech involved
             strict scrutiny, rather than intermediate review
Fall 2006                      Con Law II                     10
Attorney Advertising
     Zauderer v. Office Disciplin. Counsel (1985)
     Shapero v. Kenticky Bar Ass’n (1988)
           Greater risk of undue influence with in-person
            soliciation than with general advertising
     Florida Bar v. Went For It (1995)
           Ban on mail advertising w/in 30 days upheld
     Rule ?
           Ad-hoc balancing of speech interests (mid-level
            if purely commercial) vs. state interests in
            administration of justice and undue influence
Fall 2006                   Con Law II                11
Lorillard Tobacco v. Reilly (2001)
     State regulation of tobacco advertising
     4-step Central Hudson test:
           Truthful, deceptive or illegal advertising?
             If smoking is that dangerous, ban it.
           Substantial state interest?
                                                  Compare to ban on
             Health of children                  adult speech to
                                                  protect children
           Direct relationship?
             Ample evidence that advertising causes use
           Reasonable fit, or overbroad regulation?
             AG insensitive to speech interests; not carefully
              tailored (too restrictive)
Fall 2006                       Con Law II                   12
Lorillard Tobacco v. Reilly (2001)
     Sales practices restrictions
           No unattended displays, self-service machines
     Is a cigarette machine conduct or speech?
           To extent it is both, which is Mass. regulating?
             The actual sale (including customer), not message
           When regulation is directed at conduct, only
            minimal 1st amd scrutiny will be used, despite
            some incidental (spillover) effect on speech

Fall 2006                    Con Law II                    13
Future of Commercial Speech
     Note Kennedy & Thomas’ concurrences
           Would subject commercial speech to same
            strict scrutiny as other speech
           Does this put corporate rights on par with
            individual rights?
           Will corporate free speech dominate politics?
             Corporate dominance of media & communications
             Money is speech
                  Campaign funding / spending limitations

Fall 2006                         Con Law II                 14
1st Nat’l Bank Boston v. Bellotti (1978)
     Corporate spending on elections
           Bank spends to defeat progressive income tax
           Political speech? Whose?
     Value of speech independent of source
     State interests
           fair elections: money distorts electoral process
             But see Austin v. MI Chamber of Com (1990)
           corporate governance
             corporate powers are derived wholly from state law
             shareholder protection?
           corruption
Fall 2006                    Con Law II                    15

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