Commercial Speech

Author:Benno C. Schmidt

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Until 1976 "commercial speech"?a vague category encompassing advertisements, invitations to deal, credit or financial reports, prospectuses, and the like?was subject to broad regulatory authority, with little or no protection from the FIRST AMENDMENT. The early decisions, epitomized by Valentine v. Chrestensen (1942), followed the then characteristic judicial approach of defining certain subject-matter categories of expression as wholly outside the scope of First Amendment protection. Under this TWO-LEVEL THEORY, a "definitional" mode of First Amendment adjudication, commercial speech was considered to be, along with OBSCENITY, and LIBEL, outside First Amendment protection.

When facing combinations of unprotected commercial speech and protected political speech in subsequent cases, the Court made First Amendment protection turn on the primary purpose of the advertisement. Thus, in MURDOCK V. PENNSYLVANIA (1943), the Court struck down an ordinance requiring solicitors of orders for goods to get a license

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and pay a fee as it applied to Jehovah's Witnesses who sold religious pamphlets while seeking religious converts. On the other hand, in Bread v. Alexandria (1951) the Court held that a door-to-door salesman of national magazine subscriptions was subject to a town ordinance barring such sales techniques, because his primary purpose was to sell magazines rather than to disseminate ideas.

The "primary purpose" test unraveled in NEW YORK TIMES V. SULLIVAN (1964), more prominently known for another rejection of the definitional approaches in its holding that defamation is not beyond First Amendment protection. In Sullivan, the New York Times had printed an allegedly defamatory advertisement soliciting funds for civil rights workers. Although the advertisement's primary purpose was, arguably, to raise money, the Court held that it was protected by the First Amendment because it "communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern."

Recent decisions have gone well beyond Sullivan and moved advertising and other commercial speech?political or not?within the protection of the First Amendment. In the leading case, VIRGINIA PHARMACY BOARD V. VIRGINIA CITIZENS CONSUMER COUNCIL (1976), the Court struck down a state ban on prescription drug...

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