Commercial Speech

• Author: Ruthann Robson
• Pages: 682-778

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This chapter charts the ascent of “commercial speech” from unprotected

to arguably as fully protected as political speech. The first subsection

addresses the beginning of the protections of commercial speech and its

definitions. The second subsection explores the current “intermediate

scrutiny” type test for commercial speech and its application, including

to attorney advertising. The last subsection focuses on Sorrell v. IMS

Health, the Court’s most recent major commercial speech decision and

arguably an elevation of commercial speech in any First Amendment

hierarchy.

Chapter Outline

1*!C)#L&@3:)#%(-%(5&%#&7)#%(-%(5&D:((-'&!

Valentine!v.!Chrestensen!!

Bigelow!v.!Commonwealth!of!Virginia!!

Virginia!State!Pharmacy!Board!v.!!Virginia!Citizens!Consumer!Council!!

Notes!!

11*!='(&/(3%)26&A$5.#3&=(.%&`&1%.&!::6+-2%+#3.&!

Central!Hudson!Gas!&!Electric!Corp.!!v.!Public!Service!Commission!!

Bolger!v.!Youngs!Drug!Products!Corp.!!

Zauderer!v.!Office!of!Disciplinary!Counsel!!of!the!Supreme!Court!of!Ohio!!

Florida!Bar!v.!Went!For!It,!Inc.!!

Lorillard!Tobacco!Co.!v.!Reilly!!

Notes!!

111*&='(&!.-(35(3-K&/#LL()-+26&D:((-'\&!

Sorrell!v.!IMS!Health!Inc.!!

Notes!!

Robson The First Amendment

683

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Valentine$v.$Chrestensen$

316 U.S. 52 (1942)

JUSTICE ROBERTS DELIVERED THE OPINION OF THE [UNANIMOUS] COURT.

The respondent, a citizen of Florida, owns a former United States Navy

submarine which he exhibits for profit. In 1940 he brought it to New York City

and moored it at a State pier in the East River. He prepared and printed a

handbill advertising the boat and soliciting visitors for a stated admission fee.

On his attempting to distribute the bill in the city streets, he was advised by the

petitioner, as Police Commissioner, that this activity would violate § 318 of the

Sanitary Code, which forbids distribution in the streets of commercial and

business advertising matter but was told that he might freely distribute

handbills solely devoted to "information or a public protest."

Respondent thereupon prepared and showed to the petitioner, in proof form, a

double-faced handbill. On one side was a revision of the original, altered by the

removal of the statement as to admission fee but consisting only of commercial

advertising. On the other side was a protest against the action of the City Dock

Department in refusing the respondent wharfage facilities at a city pier for the

exhibition of his submarine, but no commercial advertising. The Police

Department advised that distribution of a bill containing only the protest would

not violate § 318, and would not be restrained, but that distribution of the

double-faced bill was prohibited. The respondent, nevertheless, proceeded with

the printing of his proposed bill and started to distribute it. He was restrained

by the police.

Respondent then brought this suit to enjoin the petitioner from interfering with

the distribution. In his complaint he alleged diversity of citizenship; an amount

in controversy in excess of $3,000; the acts and threats of the petitioner under

the purported authority of § 318; asserted a consequent violation of § 1 of the

Fourteenth Amendment of the Constitution; and prayed an injunction. The

District Court granted an interlocutory injunction, and after trial on a

stipulation from which the facts appear as above recited, granted a permanent

injunction. The Circuit Court of Appeals, by a divided court, affirmed.

The question is whether the application of the ordinance to the respondent's

activity was, in the circumstances, an unconstitutional abridgement of the

freedom of the press and of speech.

1. This court has unequivocally held that the streets are proper places for the

exercise of the freedom of communicating information and disseminating

opinion and that, though the states and municipalities may appropriately

regulate the privilege in the public interest, they may not unduly burden or

proscribe its employment in these public thoroughfares. We are equally clear

that the Constitution imposes no such restraint on government as respects

purely commercial advertising. Whether, and to what extent, one may promote

or pursue a gainful occupation in the streets, to what extent such activity shall

Robson The First Amendment

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be adjudged a derogation of the public right of user, are matters for legislative

judgment. The question is not whether the legislative body may interfere with

the harmless pursuit of a lawful business, but whether it must permit such

pursuit by what it deems an undesirable invasion of, or interference with, the

full and free use of the highways by the people in fulfillment of the public use to

which streets are dedicated. If the respondent was attempting to use the streets

of New York by distributing commercial advertising, the prohibition of the code

provision was lawfully invoked against his conduct.

2. The respondent contends that, in truth, he was engaged in the dissemination

of matter proper for public information, none the less so because there was

inextricably attached to the medium of such dissemination commercial

advertising matter. The court below appears to have taken this view, since it

adverts to the the difficulty of apportioning, in a given case, the contents of the

communication as between what is of public interest and what is for private

profit. We need not indulge nice appraisal based upon subtle distinctions in the

present instance nor assume possible cases not now presented. It is enough for

the present purpose that the stipulated facts justify the conclusion that the

affixing of the protest against official conduct to the advertising circular was

with the intent, and for the purpose, of evading the prohibition of the ordinance.

If that evasion were successful, every merchant who desires to broadcast

advertising leaflets in the streets need only append a civic appeal, or a moral

platitude, to achieve immunity from the law's command.

The decree is

Reversed.

Bigelow$v.$Commonwealth$of$Virginia$

421 U.S. 809 (1975)

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C. J., AND DOUGLAS,

BRENNAN, STEWART, MARSHALL, AND POWELL, JJ., JOINED. REHNQUIST, J., FILED A DISSENTING

OPINION, IN WHICH WHITE, J., JOINED.

JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT.

An advertisement carried in appellant's newspaper led to his conviction for a

violation of a Virginia statute that made it a misdemeanor, by the sale or

circulation of any publication, to encourage or prompt the procuring of an

abortion. The issue here is whether the editor-appellant's First Amendment

rights were unconstitutionally abridged by the statute. The First Amendment, of

course, is applicable to the States through the Fourteenth Amendment.

Schneider v. State (1939).

I

The Virginia Weekly was a newspaper published by the Virginia Weekly

Associates of Charlottesville. It was issued in that city and circulated in

Albemarle County, with particular focus on the campus of the University of

Virginia. Appellant, Jeffrey C. Bigelow, was a director and the managing editor

and responsible officer of the newspaper.