The Oyez Project: First Amendment Issues - Commercial Speech Decisions

44 Liquormart Inc. v. Rhode Island

Is Rhode Island's statute an infringement on the First Amendment right to commercial freedom of speech? If it is, can Rhode Island still pass such legislation under the Twenty-first Amendment which limits the dormant Commerce Clause by empowering the states to regulate the sale of alcohol?

Yes and no. In a fractious opinon for a unanimous Court, Justice Stevens found Rhode Island's statutory ban on liquor price advertising to be an unconstitutional infringement of the liquor sellers' First Amendment right to freedom of speech. In response to Rhode Island's claim that it passed the statutory ban to protect consumers from "commercial harms," Justice Stevens held that governmental impediments to truthful and accurate commercial messages rarely protect consumers. On the contrary, courts must take "special care" when considering such "protective" measures since they often hinder public choice and obstruct necessary debate over public policy issues. Furthermore, Rhode Island failed to show that its statutory ban would lower market-wide liquor consumption, must less alter alcohol consumption among abusive drinkers who are most in need of assistance. Finally, Justice Stevens held that although the Twenty-first Amendment did empower Rhode Island to regulate the sale of liquor, such regulatory power is not to be exercised to the detriment of its constitutional obligation to protect and abide by the First Amendment's freedom of speech guarantee.

Bigelow v. Virginia

Did the Virginia law violate the First and Fourteenth Amendments of the Constitution?

The Court held that the Virginia law infringed upon Bigelow's First Amendment rights and violated the Constitution. Citing prior holdings such as New York Times v. Sullivan (1964), Justice Blackmun denied the Supreme Court of Virginia's ruling that commercial speech is not afforded First Amendment protection. Furthermore, the advertisement in question contained important information in the "public interest" which went beyond merely informing readers of a commercial service. Finally, the Court feared that the Virginia statute had the potential to "impair" national and interstate publications which might choose to carry similar advertisements.

Board Of Trustees, State Univ. Of N. Y. v. Fox

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Bolger v. Youngs Drug Products Corp.

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Central Hudson Gas & Elec. v. Public Ser v. Comm'n

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City Of Cincinnati v. Discovery Network, Inc.

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Edenfield v. Fane

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Friedman v. Rogers

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Glickman v. Wileman Brothers & Elliott

Did the AMAA's assessments on product advertising and promotion violate of the First Amendment's freedom of speech protections?

No. Exempting its financial regulations from the heightened review standard appropriate in most First Amendment issues, the Court's 5-to-4 decision held that just because the AMAA's economic regulations may indirectly result in the reduction of the complaining parties' advertising budgets, they did not violate their free speech. The relevant assessments did not force the growers, handlers, or processors to repeat unsuccessful ads, to respond to negative ads when they preferred to remain silent, or to be publicly identified with messages other than their own. All the AMAA required of these parties were contributions for ad campaigns which were ultimately aimed at promoting their own welfare by encouraging customers to buy their products.

Greater New Orleans Broadcasting Assoc. v. U.S.

Does a federal prohibition against advertising lawful privately-held casino-gambling violate the First Amendment's freedom of speech protections?

Yes. In a unanimous decision, the Court found the advertising restrictions unconstitutional insofar as they applied to Louisiana-based advertisers - where the gambling activities being promoted are legal. The government failed to demonstrate that its restriction would alleviate harmful gambling practices to any material degree. Instead, the Court noted, the regulations in question provided only ineffective and remote support for the government's concerns, since all sorts of other gambling activities would continue unaffected. Thus, the government restrictions unfairly singled out a specific form of speech for regulation while leaving others untouched.

Johanns v. Livestock Marketing Association

Does the Beef Promotion and Research Act of 1985 (Beef Act) violate the First Amendment by requiring cattle producers to pay to fund advertising with which they disagree?

No. In a 6-3 opinion delivered by Justice Antonin Scalia, the Court held that the fund was for government speech and that therefore the government could not be sued under the First Amendment. The Court pointed to the rule that while compelled funding of private speech raises First Amendment concerns, compelled funding of government speech generally does not.

Linmark Associates, Inc. v. Willingboro

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Lorillard Tobacco v. Reilly

Does the Federal Cigarette Labeling and Advertising Act preempt portions of the Attorney General of Massachusetts' cigarette advertising regulations? Do portions of the Attorney General's regulations governing the advertising and sale of tobacco products violate the First Amendment?

Yes and yes. In an opinion delivered by Justice Sandra Day O'Connor, the highly fractured Court held that the FCLAA preempts Massachusetts' regulations governing outdoor and point-of-sale cigarette advertising and that Massachusetts' outdoor and point-of-sale advertising regulations related to smokeless tobacco and cigars violate the First Amendment, but that the sales practices regulations related to all three tobacco products are constitutional. "We conclude that the Attorney General has failed to show that the outdoor advertising regulations for smokeless tobacco and cigars are not more extensive than necessary to advance the State's substantial interest in preventing underage tobacco use," wrote Justice O'Connor.

Los Angeles Police Dept. v. United Reporting Publishing Corp

Does California's amended public record statute, under which an arrestee's address disclosed by governmental agency may not be used to sell a product or service, violate the First Amendment's protection of commercial speech?

No. In a 7-2 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the amended statute was not an abridgment of anyone's right to engage in speech, commercial or otherwise, but simply a law regulating access to information in the hands of law enforcement agencies. The Court concluded that United's facial challenge to the statute was not warranted, as there was "'no possibility that protected speech would be muted.'" Justice Rehnquist wrote for the Court that, "California could decide not to give out arrestee information at all without violating the First Amendment." Dissenting, Justice John Paul Stevens expressed the view that the amended statute was invalid as applied to the service, because California was denying access to information based on their intended use of the information for a constitutionally protected purpose, and that such discrimination was not justified by state interests.

Metromedia, Inc. v. San Diego

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Pacific Gas & Elec. Co. v. Public Util. Comm'n

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Pittsburgh Press Co. v. Human Rel. Comm'n

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Rubin, Secretary Of The Treasury v. Coors Brewing Co.

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Thompson v. Western States Medical Center

Do the prohibitions in the Food and Drug Administration Modernization Act of 1997 with regard to soliciting prescriptions for, and advertising, compounded drugs violate the First Amendment?

Yes. In a 5-4 opinion delivered by Justice Sandra Day O'Connor, the Court held that the FDAMA's provisions amounted to unconstitutional restrictions on commercial speech. Among other findings, the Court reasoned that, although the speech restrictions allegedly served governmental interests in permitting drug compounding while guaranteeing that compounding was not conducted on such a scale as to undermine the drug approval process, it had not been demonstrated that the speech restrictions were not more extensive than necessary to serve such interests. Justice Thomas Clarence filed a concurring opinion. Justice Stephen G. Breyer, joined by Chief Justice William H. Rehnquist and Justices John Paul Stevens and Ruth Bader Ginsburg, filed a dissenting opinion.

United States v. Edge Broadcasting Co., T/A Power 94

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United States v. United Foods

Do mandatory advertising assessments imposed on mushroom producers and handlers under the Mushroom Promotion, Research, and Consumer Information Act violate the First Amendment?

Yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the assessment requirement violates the First Amendment. Justice Kennedy wore for the Court that "the mandated support is contrary to the First Amendment principles set forth in cases involving expression by groups which include persons who object to the speech, but who, nevertheless, must remain members of the group by law or necessity." "We have not upheld compelled subsidies for speech in the context of a program where the principal object is speech itself," continued Justice Kennedy.

Virginia Pharmacy Bd. v. Virginia Consumer Council

Is a statutory ban on advertising prescription drug prices by licensed pharmacists a violation of "commercial speech" under the First Amendment?

Yes. In a 7-to-1 opinion, the Court held that the First Amendment protects willing speakers and willing listeners equally. The Court noted that in cases of commercial speech, such as price advertising, freedom of speech protections apply just as they would to noncommercial speech. Even speech that is sold for profit, or involves financial solicitations, is protected. The Court concluded that although the Virginia State Board of Pharmacy has a legitimate interest in preserving professionalism among its members, it may not do so at the expense of public knowledge about lawful competitive pricing terms.