Robson The First Amendment
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
Robson The First Amendment
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
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
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).
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.