Commercial Speech

For almost 200 years after the ratification of the First Amendment, commercial speech was offered very few protections.

Defined as 'speech proposing a commercial transaction' commercial speech and its 1A protections (or lack thereof) affect the advertising and marketing industries on a widespread scale nationwide.

So what exactly did change to offer commercial speech an intermediate level of First Amendment protections? A series of landmark Supreme Court cases throughout the 20th Century gave commercial speech a new legal foundation and footing on which some of the highest protections were offered.

Starting off in 1915, the case Mutual Film Corp. v. Ohio led to the Speech/Action dichotomy. Borne out of the controversial film Birth of a Nation, the Supreme Court ruled unanimously that First Amendment protections were NOT offered to films, as they fell under the category of 'expressive actions,' which were not offered 1A protections, unlike speech. While the 1915 Court did see speech as protected, they saw action and expressive action (action intended to convey a message to an audience) as outside the realm of 1A free speech.

During the midst of WWII, the Supreme Court tried and failed at overturning Mutual Film in Valentine v. Chrestensen. This case ruled that commercial speech in public areas is offered no constitutional protections, thus commercial speech does not fall under any 1A defense.

Skipping ahead to the nation's bicentennial in 1976, the SCOTUS took on Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. This argument dealt with the legality of pharmacies displaying drug prices. Under this case, the Supreme Court reversed its prior stances in both Mutual Film and Valentine. As a result, commercial speech was offered intermediate-level 1A protections.

Four years later in 1980, the Central Hudson case helped further strengthened commercial speech rights, by developing the 4-part Central Hudson Test. The standard to which commercial speech cases are held up against to this day is as follows:

1. Is the speech in question eligible for 1A protection?

2. Does the government have a 'compelling interest' in regulating advertisement?

3. Is there a close nexus between regulating and their goal?

4. Is the regulation narrowly-tailored?

Thanks to these 4 landmark questions, many cases against commercial speech now fall under the umbrella of 1A protections. After almost two centuries of being offered no consistent constitutional protection, the realm of advertising and marketing has had some of the highest legal safekeeping for nearly 50 years.

This timeline is a perfect example of how the Supreme Court undertook their purpose of determining a field's constitutionality. While the Court was initially wrong back in 1915, they did reverse their decision in the coming decades.

While the Founding Fathers and Framers of the Constitution did seemingly have infinite wisdom is some areas of citizen's rights, they could not have had the foresight to know just how much today's society is advertising-driven, or how huge of an industry marketing would become. As a result of several key Supreme Court litigations throughout the past century, 1A protection was eventually added to most forms of commercial speech.