The Oyez Project: First Amendment Issues - Commercial Speech

44 Liquormart Inc. v. Rhode Island

Rhode Island passed a statute banning the advertisement of retail liquor prices in places where liquor is not sold. Petitioners filed suit claiming that the statute violated their First Amendment right to freedom of speech. The District Court found the ban unconstitutional, noting that it did not serve any interest Rhode Island might have had in promoting temperance. The Court of Appeals reversed, holding that open competition for liquor pricing would be harmful insofar at it would increase consumption. The Supreme Court granted certiorari.

Bigelow v. Virginia

A Virginia statute made it a misdemeanor for "any person, by publication, lecture, advertisement, or by the sale or circulation of any publication, or in any other manner, [from encouraging] or [prompting] the procuring of abortion or miscarriage." Bigelow, director and managing editor of the Virginia Weekly, was convicted under this law when his newspaper ran an advertisement for an organization which referred women to clinics and hospitals for abortions.

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

In 1937, Congress passed the Agricultural Marketing Agreement Act (AMAA) to promote fair pricing and uniform marketing conditions in the agriculture business. Exempted from antitrust laws, the AMAA mandated uniform prices, product standards, and other conditions; all of which had to be approved by at least two-thirds of the affected producers and implemented by producer committees appointed by the Secretary of Agriculture. The AMAA's administrative expenses were to be covered by assessments imposed on activities such as product advertising and promotion. After suffering adverse rulings at the administrative, District, and Circuit Court levels, a group of California tree fruit growers, handlers, and processors appealed their constitutional challenge of the AMAA to the Supreme Court - which granted certiorari.

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

The Greater New Orleans Broadcasting Association (Association) wanted to run advertisements for lawful private casino gambling in Louisiana and Mississippi. The Association challenged the government's prohibition against such radio- and television-based advertising. After suffering defeat in both trial and appellate courts, the Association appealed and the Supreme Court granted them certiorari.

Johanns v. Livestock Marketing Association

The Beef Promotion and Research Act (1985) required cattle producers to pay a fee for generic beef advertisements done on behalf of the cattle industry. Some cattle producers disagreed with the advertisements. The Livestock Marketing Association sued the Department of Agriculture (DEA) in federal district court and alleged a government-required fee for advertising with which some cattle producers disagreed violated their First Amendment right to free speech. The DEA argued the advertising was government speech immune from First Amendment challenge. Another group of cattle producers, the Nebraska Cattlemen, sided with the DEA and sued the Livestock Marketing Association. The two cases were consolidated. The district court and the Eighth Circuit Court of Appeals ruled the program violated the First Amendment and that the advertising was compelled and not government speech.

Linmark Associates, Inc. v. Willingboro

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Lorillard Tobacco v. Reilly

The Attorney General of Massachusetts promulgated comprehensive regulations governing the advertising and sale of cigarettes, smokeless tobacco, and cigars. Members of the tobacco industry filed suit challenging the regulations. Lorillard Tobacco Company and others asserted that under the Supremacy Clause the cigarette advertising regulations were preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA), which prescribes mandatory health warnings for cigarette packaging and advertising and that the regulations violated the First and Fourteenth Amendments. Ultimately, the Court of Appeals affirmed the District Court's rulings that the cigarette advertising regulations are not pre-empted by the FCLAA and that neither the regulations prohibiting outdoor advertising within 1,000 feet of a school or playground nor the sales practices regulations restricting the location and distribution of tobacco products violated the First Amendment. Reversing the lower court's finding, the appellate court found that the point-of-sale advertising regulations requiring that indoor advertising be placed no lower than five feet from the floor were valid.

Los Angeles Police Dept. v. United Reporting Publishing Corp

The former version of the California public records statute required a state or local law enforcement agency to make public the name, address, and occupation of every individual arrested by the agency. In 1996, the state amended the statute to require that a person requesting an arrestee's address declare, under penalty of perjury, that the request was being made for journalistic, scholarly, political, governmental, or investigative purposes, and that the address would not be used directly or indirectly to sell a product or service. The United Reporting Publishing Corporation publishes the "JAILMAIL" list, which provides the names and addresses of recently arrested individuals for its customers. United received its information from the Los Angeles Police Department and other California law enforcement agencies under the former version of the statute. United sought declaratory and injunctive relief to hold the amendment unconstitutional under the First and Fourteenth Amendments. Ultimately, the Federal District Court granted United summary judgment, on the ground that the amended statute was an impermissible restriction on commercial speech and thus violated the First Amendment. In affirming, the Court of Appeals concluded that the amended statute restricted commercial speech, which was entitled to a limited measure of First Amendment protection; and that although an asserted governmental interest in protecting an arrestees' privacy was substantial, the amended statute's numerous exceptions precluded the statute from directly and materially advancing such an interest.

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

The Food and Drug Administration Modernization Act of 1997 (FDAMA) exempts "compounded drugs," or drugs in which a pharmacist or doctor has combined, mixed, or altered ingredients to create a medication tailored to an individual patient's needs, from the Food and Drug Administration's (FDA) standard drug approval requirements under the Federal Food, Drug, and Cosmetic Act (FDCA), so long as the providers of the compounded drugs abide by several restrictions. The restrictions included that the prescription be unsolicited and that the providers not advertise or promote the compounding of any particular drug, class of drug, or type of drug. A group of licensed pharmacies that specialize in compounding drugs sought to enjoin enforcement of the advertising and solicitation provisions, arguing that they violate the First Amendment's free speech guarantee. Agreeing, the District Court held that the provisions constituted unconstitutional restrictions on commercial speech. Affirming in part, the Court of Appeals concluded that the Government had not demonstrated that the restrictions would directly advance its interests or that alternatives less restrictive of speech were unavailable.

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

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United States v. United Foods

The Mushroom Promotion, Research, and Consumer Information Act mandates that fresh mushroom handlers pay assessments used primarily to fund advertisements promoting mushroom sales. United Foods, Inc. refused to pay the assessment, claiming that it violated the First Amendment. Ultimately, United Foods sought review in the District Court. In granting the Government summary judgement, the court relied on Glickman v. Wileman Brothers & Elliott, Inc., which held that the First Amendment was not violated when agricultural marketing orders, as part of a larger regulatory marketing scheme, required producers of California tree fruit to pay assessments for product advertising. In reversing, the Court of Appeals held that Glickman did not control because the mandated payments in this case were not part of a comprehensive statutory agricultural marketing program.

Virginia Pharmacy Bd. v. Virginia Consumer Council

Acting on behalf of prescription drug consumers, the Virginia Citizens Consumer Council challenged a Virginia statute that declared it unprofessional conduct for licensed pharmacists to advertise their prescription drug prices. On appeal from an adverse ruling by a three-judge District Court panel, the Supreme Court granted the Virginia State Board of Pharmacy review.