1. Constitutional Law II Commercial Speech

2. Fall 2006Con Law II2 Early years Valentine v. Christensen (1942) commercial advertising not protected by 1 st 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’”

3. Fall 2006Con Law II3 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)

4. Fall 2006Con Law II4 VA Pharmacy Bd. v. VCCC (1976) Is advertising protected (1 st Amd) speech? solicitation 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 instrumental/interpellative Yes. It requires intermediation by listener; no instrumental/interpellative effects values Yes. It serves 1 st 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.

5. Fall 2006Con Law II5 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 1 st 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

6. Fall 2006Con Law II6 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) unprotected

7. Fall 2006Con Law II7 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

8. Fall 2006Con Law II8 Central Hudson v. PSC (1980) 4-part test for commercial speech: 1.Is the speech protected (e.g., truthful)? 2.Is the gov’t interest substantial? 3.Does restriction directly serve that interest? 4.Is the law more restrictive than necessary? 1.Truthful ads give useful information to consumers 2.Interest in energey con- servation is substantial 3.Yes. Ad ban may reduce demand for more energy 4.Yes. It is overbroad; not all banned ads would undermine conservation A more carefully tailored (less effective?) regulation of utility advertising might survive Is this really intermediate scrutiny, or strict scrutiny? Protecting economic interests under the 1st amend rather than due process?

9. Fall 2006Con Law II9 Central Hudson v. PSC (1980)

10. Fall 2006Con Law II10 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

11. Fall 2006Con Law II11 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

12. Fall 2006Con Law II12 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?  Health of children Direct relationship?  Ample evidence that advertising causes use Reasonable fit, or overbroad regulation?  AG insensitive to speech interests; not carefully tailored (too restrictive) Compare to ban on adult speech to protect children

13. Fall 2006Con Law II13 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 Rule: When regulation is directed at conduct, only minimal 1st amd scrutiny will be used, despite some incidental (spillover) effect on speech

14. Fall 2006Con Law II14 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

15. Fall 2006Con Law II15 1 st 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