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Flashcards in Commercial Speech Deck (11)
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1

What is commercial speech?

Speech that merely proposes a commercial transaction

2

Virginia Pharmacy

Rule = Commercial speech (including paid advertisement) is protected by the First Amendment

Case stands for the proposition that → mind control is not allowed, gov’t is not allowed to keep certain ideas away from ppl just because they believe that the response to the speech will be negative

3

Standard of review?

Intermediate scrutiny?

4

Why does commercial speech get intermediate scrutiny?

Court is saying that sometimes gov't CAN regulate commercial speech.

When? Use Central Hudson 4 part test

5

Central Hudson 4 Part Test -- 1st Prong

Whether the speech is misleading or related to unlawful activity

(a) If yes (false or misleading), then the commercial speech isn’t protected by the First Amendment so the state gets to regulate
(b) If no (truthful and non-misleading), the speech is protected and 4 part analysis comes into play

6

Central Hudson 4 Part Test -- 2nd Prong

ii. Whether the regulation is supported by a substantial governmental interest

7

Central Hudson 4 Part Test -- 3rd Prong

iii. Whether the regulation directly advances the gov’t interest

8

Central Hudson 4 Part Test -- 4th Prong

iv. Whether the interest could be achieved by a less burdensome restriction on commercial speech

(a) This prong can be satisfied by a rule that is tailored to its objective, even if it s not the least restrictive means

9

When mixing commercial and non-commercial speech?

The speech will be treated as commercial speech

10

Casinos and gambling

Posadas de Puerto Rico Assoc. v.Tourism Company of Puerto Rico

i. Puerto Rico law prohibited gambling casinos from advertising their facilities to residents of PR, but not to tourists

ii. Gov’t interest = interest in promoting toursism and deterring local demand for gambling

iii. HOLDING = Law was upheld, because Court determined the gov’t had a substantial health, safety, and welfare interest – PR’s restrictions on advertising was a reasonable fit to the interests

11

Paternalist regulation of commercial speech

will always fail Hudson test