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Commercial speech

Commercial speech is a U.S. legal term relating to speech done on behalf of a company or individual for the intent of making a profit. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product. Generally, the United States Supreme Court defines commercial speech as speech that "proposes a commercial transaction."[1]



The Court developed a three factor inquiry in determining whether speech is commercial in the 1983 case Bolger v. Youngs Drug Products namely, (1) is the material meant to be an advertisement, (2) does the material reference a particular product, and (3) is there is an economic motivation for disseminating the material? If all of these attributes are present, then it is commercial speech.[2] These factors have yet to be utilized in other Supreme Court cases dealing with commercial speech.

The idea of "Commercial Speech" was first introduced by the Supreme Court when it upheld Valentine v. Chrestensen (1942). In upholding the regulation, the Supreme Court said, "We are … clear that the Constitution imposes … no restraint on government as respects purely commercial advertising."

In a 1978 decision, Ohralik v. Ohio State Bar Ass'n where the Court rejected an attorney's claim that the disciplinary Board of the Ohio Supreme Court's rules prohibiting in-person solicitations violated his First and Fourteenth Amendment rights, the Court offered this defense:

Expression concerning purely commercial transactions has come within the ambit of the Amendment's protection only recently. In rejecting the notion that such speech "is wholly outside the protection of the First Amendment," we were careful not to hold "that it is wholly undifferentiable from other forms" of speech. We have not discarded the "common-sense" distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of 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 Amendment's guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, 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.

The Court has recognized that commercial speech does not fall outside the purview of the First Amendment and has afforded commercial speech a measure of First Amendment protection "commensurate" with its position in relation to other constitutionally guaranteed expression.[3] The Court has set forth a framework for analyzing commercial speech under intermediate scrutiny:

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.[4]


Members of the Supreme have expressed doubts about the Court's differential treatment of commercial speech in relation to other types of speech. Justice Clarence Thomas replied, in 44 Liquormart, Inc. v. Rhode Island (1996), that "I do not see a philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech." Justice Thomas would apply strict scrutiny to regulations of commercial speech.[5] Justice Scalia expressed "discomfort with the Central Hudson test, which seem[ed to him] to have nothing more than policy intuition to support it."[6]

US Court of Appeals judge Alex Kozinski stated, in regard to the 1942 ruling, "the Supreme Court plucked the commercial speech doctrine out of thin air."[7]

See alsoEdit


  1. ^ Central Hudson Gas & Elec. v. Public Svc. Comm'n, 447 U.S. 557, 562 (1980).
  2. ^ "Case Brief: Bolger v. Youngs Drug Products Corp (1983)". CaseBriefs, LLC. Retrieved 1 March 2016. 
  3. ^ Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 553 (2001).
  4. ^ Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY, 447 U.S. 557, 566 (1980).
  5. ^ Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 572 (2001).
  6. ^ 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 517 (1996).
  7. ^ Kozinski, Alex; Banner, Stuart (May 1990). "Who's Afraid of Commercial Speech?". Virginia Law Review. 76 (4): 627–653. doi:10.2307/1073208. Retrieved 2017-10-05. 

Further readingEdit

  • Joanna Krzeminska-Vamvaka, Freedom of commercial speech in Europe, Hamburg: Verlag Dr. Kovac 2008 - comparative analysis of commercial speech regulation in the US, EU, under ECHR, in Germany and Poland
  • Stephen M. Worth, "'Do Not Call' Laws and the First Amendment: Testing the Limits of Commercial Free Speech Protection", J. Small & Emerging Bus. 2003