Commercial speech, advertisements, commercials, and solicitations, is just as important and necessary a form of protected speech as any other, for without it, the consumers and the producers in our market-based economy would not be able to make accurate, rational, and informed decisions that are required for efficient economic functioning. Because of this importance, the Supreme Court should adopt a more rigorous standard for protecting commercial speech.
Despite its importance, commercial speech is a form of speech that has not only begun to receive protection very recently, with two separate Supreme Court cases. These cases, Bigelow v. Virginia (1975) and Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976), found that commercial speech contains vital information for the public regardless of its profit motivations, thus, is entitled to First Amendment protections.
Arguably, the most important case in commercial speech is Central Hudson Gas & Electric Corp. v. Public Service Commission (1980), which established the Central Hudson test, now used to determine the legitimacy and constitutionality of commercial speech regulation.
This simple test contains four prongs to determine the constitutionality of a regulation:
- Does the speech concern legal and non-misleading activity? If yes:
- Does the government have a substantial interest? If yes:
- Does the regulation directly and materially advance the government’s substantial interest? If yes:
- Is the regulation narrowly tailored?
If and only if all four criteria are met, can a regulation of speech be considered lawful.
The Problem with the Central Hudson Test:
The most prominent problem is the intermediate scrutiny of the test, in which the government needs only to provide a substantial interest for the regulation. Regulations on other forms of speech do not need a substantial interest; rather, they need a ‘compelling interest.’ This difference in interest requires the government to have a much more justified and compelling reason to prohibit or even regulate speech. The test simply does not award the same level of protection to commercial speech as other speech has under the First Amendment.
Though the Central Hudson test appears to set a standard of commercial speech regulation, it remains very broad and it largely depends on the composition of the Court.
For example, the Central Hudson test has been used to both strike down and uphold commercial speech regulation. In 1986, the Court upheld a prohibition on casino and gambling advertisements in Puerto Rico as the regulation protected the “health, safety, and welfare of its citizens.” However, ten years later, the same test was able to strike down prohibitions on displaying alcohol prices in Rhode Island.
The Central Hudson test allows commercial speech to swing like a pendulum based on the composition of the Court. The test can further justify and control commercial speech, or, just as easily, be used to strike down speech regulation. A test that determines the constitutionality of regulations should not act in this way.
Critics of commercial speech often justify the insufficient protection provided by the Central Hudson test as an appropriate standard for a lower value, or even an illegitimate form of protected speech. They argue that commercial speech should not be regarded in the same vein as political or artistic speech, that speech solely for profit’s sake is not a valid form of expression.
However, this is incorrect. Advertisements and commercials contain vital information for everyday people to make informed and educated decisions, as well as give entrepreneurs and business owners the ability to broadcast their goods and services. Commercial speech is a two-way street between the speakers and the listeners. The speakers are able to advertise their goods and services, and make a livelihood for themselves and to provide for others. And the listeners are able to be the most informed consumers they can be, and able to make educated decisions on the goods and services they wish to acquire.
The protection of commercial speech is important for individuals to make personal choices and to further involve themselves in the economy as both producers and consumers. The Court must adopt a more rigorous standard of testing commercial speech regulations, which consistently upholds its vital First Amendment protections. Instead of the Court applying a test which merely requires the government to have a substantial interest in its regulation, the test must require the government to have a compelling interest. This change in the test would allow for more consistent protections of commercial speech, while also maintaining the same standard for all forms of speech protected under the First Amendment.
