Lesson 53 - Free Speech 14:

COMMERCIAL ADVERTISING

The government has more power to constrain commercial advertising than it has over fully protected speech:

,

1. Commercial advertising that proposes ILLEGAL TRANSACTIONS is forbidden. Thus, if gambling is illegal in your state, advertisements of gambling can be outlawed, too.

2. Commercial advertising that makes FALSE or MISLEADING statements of fact is forbidden. Fully protected speech -- for instance, a political ad -- is generally protected unless the speaker knows it's false, or recklessly disregards the possibility that it's false. But commercial ads can be punished even if they are honest mistakes, or even if they are technically true but misleading.

3. Other forms of advertising can still be restricted

if

- the restriction serves a *substantial government interest*
- the restriction *directly advances* that interest, and

- the restriction is *narrowly tailored* to that interest.

Are you unsure about what these three tests mean? So are we. So are the Justices. The law of commercial speech is quite a mess, and it seems to be changing directions every year. The best way of summarizing this is that true, nonmisleading advertising proposing legal transactions receives a great deal of constitutional protection, but not quite as much as does fully protected speech.

The Court calls this whole area the "commercial speech" doctrine, but it's important to realize that speech does *not* become mere "commercial speech" just because it's sold, or just because it's in the form of an advertisement, or just because it touches on commercial concerns. The stories in the New York Times are fully protected speech even though the New York Times is sold for money. A political ad is fully protected speech even though it's an "advertisement." E-mail encouraging workers to unionize or a Web site containing stock advice would be fully protected speech even though it relates to money matters.

The intermediate level of protection given to "commercial speech" applies primarily to commercial *advertising* -- speech that proposes a commercial transaction. It may also apply to some speech that's close to advertising; for instance, purportedly "informational" brochures that are actually aimed at selling a product. But if the speech is not related to a commercial transaction that the speaker wants to propose, it's not "commercial speech."

authors:

Larry Lessig David Post Eugene Volokh

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	1.	Commercial advertising that proposes ILLEGAL TRANSACTIONS is forbidden. Thus, if gambling is illegal in your state, advertisements of gambling can be outlawed, too.
	2.	Commercial advertising that makes FALSE or MISLEADING statements of fact is forbidden. Fully protected speech -- for instance, a political ad -- is generally protected unless the speaker knows it's false, or recklessly disregards the possibility that it's false. But commercial ads can be punished even if they are honest mistakes, or even if they are technically true but misleading.
	3.	Other forms of advertising can still be restricted
		if
		- the restriction serves a substantial government interest
		- the restriction directly advances that interest, and
		- the restriction is narrowly tailored to that interest.