Governmental regulation of commercial advertising has become a major focus of challenges to established first amendment doctrine. An increasing number of suits have raised constitutional objections to regulations of false or deceptive advertising, regulations of offensive advertising, prohibitions of commercial advertising in certain forums, prohibitions of price advertising for particular products or services, and prohibitions of all advertising for particular products or services.' Until recently, the majority of courts upheld such regulations under the Supreme Court's ruling in Valentine v. Chrestensen that "purely commercial advertising" is unprotected by the first amendment.
In the last two years the Court has subjected the Chrestensen doctrine to intensive scrutiny. In Bigelow v. Virginia, decided in 1975, the Court described Chrestensen as "distinctly a limited" decision and announced that the constitutionality of the regulation of commercial advertising was to be assessed by "weighing the First Amendment interest against the governmental interest alleged." One year later, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, the Court squarely rejected the "simplistic approach" of Chrestensen and held that even purely commercial advertising is not "wholly outside the protection of the First Amendment."
Bigelow and Virginia Board of Pharmacy cast serious doubt on the constitutionality of the different forms of state action that restrict business advertising. However, the Court's rulings may be difficult for lower courts to apply consistently. Neither Bigelow nor Virginia Board of Pharmacy defines commercial speech, and only in Virginia Board of Pharmacy does the Court begin tentatively to formulate the criteria courts should take into account in balancing the rights of businesses and consumers against the regulatory interests of the government. Both a definition and a conception of the relevant criteria must be developed if lower courts, agencies, and advertisers are to have adequate guidelines for assessing the constitutionality of advertising regulations.
This comment will examine the constitutional status of commercial advertising before and after Bigelow and Virginia Board of Pharmacy, and will argue that a distinction between commercial and noncommercial speech remains valid. The comment will then analyze the difficulties of defining commercial speech and advocate that courts adopt a definition based on the lower first amendment value the Supreme Court has found in commercial speech. Finally, the comment will examine some of the criteria courts should consider in reviewing four illustrative types of regulations of commercial advertising.
Thomas W. Merrill,
First Amendment Protection for Commercial Advertising: The New Constitutional Doctrine,
U. Chi. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/374