CHAPTER FouR • CiviL LibERTiEs 75
Commercial Speech
Advertising statements,
which increasingly
have been given First
Amendment protection.The Protection of Commercial Speech
commercial speech usually is defined as advertising
statements. Can advertisers use their First Amendment
rights to prevent restrictions on the content of commer-
cial advertising? Until the 1970s, the Supreme Court
held that such speech was not protected at all by the
First Amendment. By the mid-1970s, however, more and
more commercial speech had been brought under First
Amendment protection. According to Justice Harry A.
Blackmun, “Advertising, however tasteless and exces-
sive it sometimes may seem, is nonetheless dissemina-
tion of information as to who is producing and selling
what product for what reason and at what price.”^16
Nevertheless, the Supreme Court will consider a restric-
tion on commercial speech valid as long as it (1) seeks to
implement a substantial government interest, (2) directly
advances that interest, and (3) goes no further than nec-
essary to accomplish its objective. In particular, a business
engaging in commercial speech can be subject to liability
for factual inaccuracies in ways that do not apply to non-
commercial speech.Attempts to Ban Subversive or Advocacy Speech
Over the past hundred years, the United States Supreme
Court has established, in succession, a number of doc-
trines regarding language allegedly subversive to the
public order.Clear and Present danger Test. In 1919, the Supreme
Court ruled that when a person’s remarks present a clear
and present danger to the peace or public order, they
can be curtailed constitutionally. Justice Oliver Wendell
Holmes used this reasoning when examining the case of
a socialist who had been convicted of violating the Espionage Act by distributing a leaflet
that opposed the military draft. According to the clear and present danger test, expression
may be restricted if evidence exists that such expression would cause a dangerous condi-
tion, actual or imminent, that Congress has the power to prevent.^17The bad Tendency Rule. Over the course of the twentieth century, the Supreme Court
modified the clear and present danger rule, limiting the constitutional protection of free
speech in 1925 and 1951, and then broadening it substantially in 1969. In Gitlow v.
New York,^18 the Court reintroduced an earlier bad tendency rule, which placed greaterThis ad for cigarettes appeared in 1946.
Despite protection of commercial speech, it would be
impossible for such an ad to appear today. Why? (Apic/Getty
Images)- Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
- Schenck v. United States, 249 U.S. 47 (1919).
- 268 U.S. 652 (1925).
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