What is the degree of Constitutional protection from commercial free speech?
All Constitutional rights are limited in scope; and the right of free speech is no exception. There is precious little, if any free speech protection for Commercial speech. The First Amendment guarantee of freedom of speech and the press was intended to encourage a lively exchange of ideas and opinions on matters of public interest. The Supreme Court has held on numerous occasions that unpopular speech is particularly protected by the First Amendment; thus one may publicly burn an American Flag or publicly speech against any government policy without fear of reprisal.
Commercial speech, by its very nature, does not seek an exchange of ideas; rather it seeks to earn a profit for the proponent. This speech is not afforded the same protection as mentioned above. A classic example of this is cigarette advertisements on television, which many people are too young to remember. When Congress passed a law prohibiting such advertisements, the cigarette manufacturers sued, alleging violation of the company's first amendment rights. The court disagreed and upheld the statute.
The Supreme Court drew a distinction between private and commercial speech in the case of Ohralik vs. Ohio State Bar Association in which the petitioner, an attorney, was disciplined for improper conduct with a potential client. The attorney appealled the disciplinary order of the Ohio Supreme Court to the U.S. Supreme Court alleging violation of his right to free speech. The Court, in affirming the state's right to discipline the attorney said in part:
we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.
Moreover it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.
Numerous examples could be cited of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (CA2 1968), cert. denied, 394 U.S. 976 (1969), corporate proxy statements, Mills v. Electric Auto-Lite Co., 396 U. S. 375 (1970), the exchange of price and production information among competitors, American Column & Lumber Co. v. United States, 257 U. S. 377 (1921), and employers' threats of retaliation for the labor activities of employees, NLRB v. Gissel Packing Co., 395 U. S. 575, 395 U. S. 618 (1969). See Paris Adult Theatre I v. Slaton, 413 U. S. 49, 413 U. S. 61-62 (1973). Each of these examples illustrates that the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity. Neither Virginia Pharmacy nor Bates purported to cast doubt on the permissibility of these kinds of commercial regulation.
Bottom line, commercial speech receives considerably less protection than private speech.
“For First Amendment purposes, commercial speech is an expression related solely to the economic interests of the speaker and its audience, generally in the form of commercial advertisement for the sale of goods and services, or speech proposing a commercial transaction.Commercial speech enjoys a more limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, and is subject to modes of regulation that might be impermissible in the realm of noncommercial expression. In other words, commercial speech is entitled to the protection of the First Amendment, but the protection afforded commercial speech is somewhat less extensive than that afforded noncommercial speech. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the First Amendment's guarantee with regard to noncommercial speech. Also, although commercial speech is generally entitled to less protection under the First Amendment than other forms of speech, it nonetheless has a claim to safekeeping from unwarranted government intrusion. While political speech lies at the core of First Amendment protections, those protections also embrace commercial speech, including advertising.”
328 Am Jur 2d Constitutional Law § 499 Generally; what is Commercial Speech
“Only truthful advertising related to lawful activities is entitled to the protection of the First Amendment. In order for commercial speech to be entitled to any First Amendment protection, the speech must first concern a lawful activity and must not be misleading. In the commercial context, a speech concerning unlawful activity is not constitutionally protected. Indeed, offers to engage in illegal transactions are categorically excluded from First Amendment protection. Certainly, the First Amendment does not protect all proposals to engage in commercial transactions, and protection is not accorded at all when the underlying transaction is illegal.The government may ban misleading or deceptive commercial speech, as well as speech that relates to illegal activity, but when the commercial speech is neither illegal nor misleading, the government's power is more circumscribed.
False or misleading commercial speech receives no protection under the First Amendment. Whether speech is commercial and thus not entitled to First Amendment protection if it is false depends on whether the speech is an advertisement; the speech refers to a specific product; and the speaker has an economic motivation for the speech. A state may ban altogether commercial expression that is fraudulent, misleading, or deceptive, without further justification, but where truthful and nonmisleading expression will be snared along with fraudulent or deceptive commercial speech, the state must demonstrate that the restriction serves a substantial state interest and is designed in a reasonable way to accomplish that end.”
328 Am Jur 2d Constitutional Law § 501 Requirement that advertising be legal, truthful, and not misleading
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