Chapter 15 Regulation of Advertising INTRODUCTION Advertising is the dominant cultural icon of our time and is a huge business Advertising is a form of expression subject to legal regulation and potential First Amendment protection Advertising is probably the most heavily regulated form of modern speech and press Laws at every level federal state and local control what businesses and institutions may claim about their products and services ADVERTISING AND THE FIRST AMENDMENT It was not until 1975 that the U S Supreme Court first explicitly held that commercial advertising enjoys a degree of First Amendment protection reasoning in Bigelow v Virginia that the relationship of speech of marketplace of products or of services does not make it valueless in the marketplace of ideas But also that it is subject to reasonable regulation The commercial speech doctrine articulates just how much First Amendment protection advertising receives and the criteria the government must satisfy to permissibly regulate it Commercial speech doctrine The legal doctrine that states that truthful advertising for products and services that are not illegal is normally protected by the First Amendment to the U S Constitution In 1976 the Supreme Court ruled that a Virginia statute that forbade the advertising of the price of prescription drugs violated the First Amendment In 1977 the high court invalidated an ordinance in New Jersey that banned the placement of for sale and sold signs on front lawns Central Hudson Gas Electric Corp v Public Service Commission Central Hudson 1980 case where the Supreme Court held unconstitutional a New York regulation that completely banned promotional ads by electric utility companies The high court has granted states fairly extensive authority to regulate advertising for professional services by individuals like doctors lawyers dentists and others Commercial Speech Doctrine The First Amendment does not protect either false or misleading ads or ads for unlawful goods or services Government may regulate truthful advertising for legal goods and services if the following conditions are met 1 There is a substantial state interest to justify the regulation 2 There is evidence that the regulation directly advances this interest 3 There is reasonable fit between the state interest and the government regulation COMMERCIAL SPEECH DOCTRINE While political speech is at the top of the First Amendment hierarchy of expression and while speech that fits the Supreme Court s definition of obscenity falls completely without any First Amendment protection commercial speech lies somewhere in between Determining what constitutes commercial speech is not easy Courts often define it as expression that either is related solely to the economic interest of the speaker and its audience or proposes a commercial transaction It is much easier for the government to justify a law regulating commercial speech under the Central Hudson test the commercial speech doctrine than it is to regulate political speech under the strict scrutiny standard In cases involving speech transpiring in the context of promotional materials and activities a doctor for instance giving a talk or seminar about a new drug courts sometimes weigh three factors to help determine if it is commercial 1 whether the expression is an advertisement 2 whether it refers to a specific product and 3 whether the speaker has an economic motivation for speaking Two types of commercial speech receive no protection whatsoever The government may ban advertising that is false misleading or deceptive The government may ban advertising for unlawful goods and services Established primarily to permit the government to bar discriminatory employment advertising Even truthful advertising for legal goods and services can be regulated provided the government can satisfy these three requirements The government must assert a substantial state interest to justify the regulation States that seek to limit advertising by doctors and lawyers will argue that the public is not sophisticated enough to evaluate many claims that might be made by these professionals and even perfectly truthful claims could be deceptive Protecting the public from deception is a substantial state interest Example Coyote Publishing Inc v Miller 9th U S Circuit Court of Appeals held that Nevada s interest in preventing the commodification of sex was substantial enough to support state law limiting advertising for brothels in that state Next the government must demonstrate that the ban on advertising it has instituted will directly advance the substantial state interest Rely on valid sources of history consensus and common sense not mere speculation and conjecture Example A Baltimore ordinance that banned outdoor advertising for alcoholic beverages in areas in which children walk to school or neighborhoods in which children play was ruled permissible because it directly and materially advanced the city s interest in promoting the welfare and temperance of minors Finally the state must show that there is a reasonable fit between the state interest being asserted and the government regulation A reasonable fit means the regulation must be narrowly tailored to achieve the desired objective but it doesn t have to be the least restrictive means available Example A federal appellate court held that a Missouri law banning within one mile of highways billboard ads for sexually oriented businesses was not narrowly tailored to meet the state s substantial interest in eliminating secondary effects of adult businesses Ballen v City of Redmond 9th U S Circuit Court of Appeals held that a local law prohibiting most outdoor portable signs reader boards signs on trailers sandwich boards and so on except for real estate and political signs and several other exemptions was unconstitutional and did not survive review under the commercial speech doctrine Alexander v Cahill 2nd U S Circuit Court of Appeals held unconstitutional a New York law prohibiting certain types of attorney advertising including testimonials from clients relating to pending matters portrayals of judges or fictitious law firms attention getting techniques unrelated to attorney competence and trade names or nicknames that imply an ability to get results Lorillard Tobacco Co v Reilly The Supreme Court ruled that a Massachusetts law that banned both outdoor ads and point of sale ads for smokeless tobacco products and cigars within 1 000 feet of
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