Commercial Speech (Update 2)

Author:William W. Van Alstyne

Page 462

Since 1976, the Supreme Court has reviewed FIRST AMENDMENT challenges to regulations affecting "commercial speech" under a standard of intermediate scrutiny. To meet that standard, established in CENTRAL HUDSON GAS AND ELECTRIC CORP. V. PUBLIC SERVICE COMMISSION (1980), a law dictating or restricting the manner, extent, or content of commercial matter must be a law for which a substantial showing can be furnished of actual (rather than merely speculative) need, and of adequate justification in light of the kind and extent of regulation or restriction it enacts.

Protecting consumers from false or misleading information in commercial representations is a typical interest of sufficiently substantial weight to count heavily in this

Page 463

area, as the opinions of the Court readily admit. Regulations requiring various disclosures such as a product's actual price, ingredients, and full effects (including its effects on the environment, insofar as these, too, may be regarded as important for the consumer to understand) generally tend to be sustained in the courts. The commercial speaker may be constrained to make far more elaborate disclosures in his representations than he might wish to do, or than others not subject to the Central Hudson test (for example, candidates for public office) can be compelled to declare. He may likewise be held far more strictly responsible for the accuracy of his affirmative representations in what he presents in his publicity for his product or services, consistent with Central Hudson. Subject to meeting the other requirements of the Central Hudson test, regulations competently drawn to serve these objectives tend not to be intrusively second-guessed in the courts. It is left quite substantially to the discretion of legislative bodies and to specialized regulatory agencies (such as the Food and Drug Administration and the Federal Trade Commission), moreover, to determine the particular boundary lines?of how much disclosure or in what detail, and of what kind of affirmative claims may or may not be asserted, and on the strength of what measure of empirical support?such as the regulatory agency may require.

In contrast, a restriction severely limiting the time, place, or manner of advertising a particular product or service, not to protect the public from anything identifiably either false or misleading in such commercial material, but rather to protect a competitor's market (whether of the same good or...

To continue reading