Watching the Sun Set on the Commercial Speech Doctrine

(Source: Flickr/mindgutter)

It is important for the people to understand that what is called art in advertising is not artifice; that there is no catch in it; that it is not a one-sided device to beguile [consumers] into spending their money; but that on the other hand, its chief design is to point out effective means of communication between the tradesman and his customers that the benefits of this inter-communication, as the benefits of all advertising must be, are mutual.[1]

Introduction

            In 1995, John Huffmann, a Clemson University undergraduate chemistry major, created not only a chemical that mimicked the effects of the active ingredient in marijuana, but also the kindle of a now fiery debate over freedom of speech.[2]  Huffmann called the synthetic cannabinoid chemical JWH-018, and intended to use it to research certain forms of liver disease and cancer.[3]  Whatever the original intentions, several companies, seeking to capitalize on the new synthetic cannabinoid, began spraying it on dried herbs.[4]  These companies then marketed the smokable herbs under the guise of “potpourri,” giving the products names like “Spice” and “K2.”[5]  The effects of the “high” from smoking the chemical spiked herbs appear to vary widely depending on how producers manufactured the drug, and how predispositions influenced individual highs.[6]

In an effort to combat increases in emergency room visits due to the use of the drug, local and state governments began criminalizing certain forms of the synthetic cannabinoid.[7]  As of early 2011, a dozen states banned the drug, while several others had similar criminalizing bills under consideration.[8]  The efforts, however, remained largely futile due to the synthetic nature of the product, which allowed producers to change slightly the chemical makeup of the product in order to circumvent any new bans on specific chemical compounds.[9]  One potential remedy to the chameleon character of Spice’s chemical makeup is to ban advertising that relates to the product.[10]  Therefore, while being unable to ban the product itself, a legislature could at least minimize publicity surrounding the product thereby—presumably—decreasing use and demand.

The implications of such a ban stretch far beyond drug control into serious First Amendment[11] questions related to the rights of a commercial speaker who seeks to advertise variations of these chemicals that could be banned, but have not yet been banned.[12]  Indeed, “important First Amendment values are furthered by protecting advertisements that offer services and activities that have been, or could be, legally prohibited.”[13]  Despite the furtherance of these values, others argue that the government may—consistent with the First Amendment—ban or restrict advertising that relates to potentially harmful substances.[14]  Pointing to cigarette and alcohol advertising bans, proponents of restricting commercial speech relating to legal—but dangerous substances (like synthetic cannabinoids)—assert that such a restriction poses no threat to the First Amendment, because that Amendment was never intended to protect wholly commercial speech; “As a rule, [product advertising] does not affect the political process, does not contribute to the exchange of ideas, [and] does not provide information on matters of public importance . . . .”[15]

In order to address whether advertising of synthetic cannabinoids would contravene the First Amendment, this comment proposes a new approach to commercial advertising bans.  It suggests that the Court should discard its Central Hudson test,[16] and move towards an analysis that does not focus exclusively on the “commercialness” of the speech.  Specifically, Part I briefly examines the history and development of the commercial speech doctrine.  Next, Part II criticizes the false dichotomy of commercial and non-commercial speech, and provides reasons to discard, in favor of a strict scrutiny analysis, the now accepted—but nonetheless challenged and controversial—Central Hudson test.  Finally, it asserts in Part III that despite the broad protections that the First Amendment provides commercial speech, the government may still enforce truth in advertising rules as part of its greater economic regulatory power.  It concludes that although a blanket ban on the advertising of synthetic cannabinoids likely violates the First Amendment, the government may still regulate that advertising, assuming that those regulations are tied to fostering truthful representations of the commercial characteristics of the product.

I. A Brief History of the Commercial Speech Doctrine

            Although the commercial speech doctrine jurisprudence is variable,[17] the Court’s decisions affirm the idea that commercial speakers enjoy some degree of First Amendment protections.[18]  In 1976, the Supreme Court in Virginia State Board broke from past decisions to hold unconstitutional a Virginia statute that prevented pharmacists from “publish[ing], advertis[ing], or promot[ing]” the price of prescription drugs.[19]  Justice Blackmun, writing for the majority, first acknowledged the Court’s past hostility towards granting commercial speech, that is, speech that “proposes a commercial transaction,” First Amendment protections, writing that “[t]here can be no question that in past decisions the Court has given some indication that commercial speech is unprotected.”[20]  Nonetheless, he rejected the argument that commercial and non-commercial advertising are inherently different.[21]  He went on to state that both the First Amendment rights of the pharmacists and the consumers must be considered.[22]  Indeed, Justice Blackmun acknowledged at the outset that freedom of speech protects the speaker, and “where a speaker exists . . . the protection afforded is to the communication, to its source and to its recipients.”[23]

Just four years later in Central Hudson Gas & Electric Corp. v. Public Service Comm’n, the Court quickly backtracked from its holding in Virginia State Board.[24]  In Central Hudson, where petitioners challenged the Public Service Commission’s ban on all promotional advertising relating to energy consumption, Justice Powell, writing for the majority, outlined the so-called Central Hudson test.[25]  The test, which amounts to asking whether a certain abridgement or regulation of commercial speech is based on a substantial governmental interest that is not overbroad, led Justice Powell to the conclusion that a complete ban violated the First Amendment, because it was too broad.[26]  Indeed, the ban on advertising encompassed advertising that damaged the state’s interest in promoting energy conservation, and advertising that actually promoted the state’s interest, that is, promoted energy conservation habits.[27]

Following the advent of the Central Hudson test, both the Supreme Court and lower courts applying the test arrived at different conclusions despite similar fact patterns.[28]  In Posadas de Puerto Rico Assocs. v. Tourism Co., for example, the Supreme Court upheld an initiative by the Puerto Rican legislature that banned gambling advertising directed at its own citizens.[29]  There, the Court gave extreme deference to the legislature, concluding that the legislature believed “advertising of casino gambling aimed at the residents of Puerto Rico would serve to increase the demand for the product advertised,” and that belief was “a reasonable one.”[30]  More recently, however, the Court has demanded actual evidence—as opposed to legislative intuition—to support restrictions on commercial speech.[31]  As the Court stated in 44 Liquormart, Inc. v. Rhode Island, “without any . . . evidentiary support whatsoever, we cannot agree with the assertion that the price advertising ban will significantly advance the State’s interest in promoting temperance.”[32]  As such, Justices and scholars saw 44 Liquormart as a return to the original rational of Virginia State Board, providing greater protections to commercial speech.[33]

In 2011, the Supreme Court again applied Central Hudson in Sorrell v. IMS Health, Inc.[34]  There, the Court considered whether a Vermont law preventing pharmacies from selling prescription drug consumption information to data miners and pharmaceutical companies violated the First Amendment.[35]  While the companies affected by the statute argued for application of strict scrutiny, the state argued for the application of the Central Hudson test.[36]  The Court passed on deciding whether applying strict scrutiny or Central Hudson was more appropriate, because the regulation failed even the less strict Central Hudson test.[37]  Both Sorrell and 44 Liquormart seem to indicate that the Court is partial to applying what was once a true intermediate scrutiny test under Central Hudson with “bite.”[38]

Although some have suggested that the commercial speech doctrine will naturally fall by the wayside with the Supreme Court’s decision in Citizens United, it is not clear that Citizens United necessarily leads to the overruling of Central Hudson.[39]  Indeed, Citizens United reinstated the principle that government cannot regulate political speech on the basis of the speaker.[40]  Yet, the Court originally based its rationale of limited protections for commercial speech not on the fact that the speaker was corporate, but rather because the speech itself was commercial and therefore not within the ambit of the First Amendment.[41]  Thus, the underlying rationales for the regulations in Citizens United and in the commercial speech cases are different.[42]  As such, Citizens United by itself does not naturally require the overruling of Central Hudson.  Such an assertion is bolstered by the fact that the Supreme Court after deciding Citizens United still applied Central Hudson in Sorrell.[43]

II. A False Dichotomy and a New Approach

            The First Amendment’s protections serve to foster and protect a free exchange of ideas and expressions.[44]  Nonetheless, the Court has not extended the protection of that Amendment to certain categories of “valueless” speech.[45]  After Central Hudson, the Court returned to pigeonholing commercial speech into a similar category of relatively unprotected speech.[46]  Central Hudson, however, did not pass unchallenged, with opponents arguing that there is no substantive difference between commercial and non-commercial speech.[47]  Indeed, several cases “suggest[] that no line between publicly ‘interesting’ or ‘important’ commercial advertising and the opposite kind could ever be drawn.”[48]  As such, the foundation on which the Central Hudson test sits, that is, commercial speech requires fewer First Amendment protections, necessarily relies on a potentially impossible classification of speech as commercial in the first place.[49]

A.  Dissecting the Commercial Distinction

Since Virginia State Board and despite inherent difficulties, courts have attempted to distinguish commercial from non-commercial advertising by their “commonsense differences.”[50]  Following Supreme Court jurisprudence,[51] courts have asserted that not only the unique characteristics of commercial speech like its “hardiness” and “objectivity,” but also the “greater potential for deception or confusion in the context of certain advertising messages” is reason to regulate this speech.[52]  Yet these supposed distinctions only veil the complexity of distinguishing commercial speech from non-commercial speech.  Indeed, “is it really that simple?”[53]

Judges, for example, have had difficulties defining commercial speech based on the Virginia State Board Court’s offered model of a commercial statement; that is, “I will sell you the X prescription drug at the Y price.”[54]  Most often, commercial advertising does not fit into such a simple mold; many times, commercial advertising not only proposes a transaction, but also imparts both affective and informational messages, and conveys images and expressions that are intended to persuade the public.[55]  As such, the case may present itself where the suppression of supposedly commercial speech will—necessarily—sweep into its ambit traditionally protected speech that “contribute[s] to the exchange of ideas.”[56]  Indeed, “the lines between art and advertising are not sharp.”[57]  Thus, despite attempting to classify a certain advertisement as commercial, there seems to be little doubt such a classification is futile,[58] and even if it wasn’t, a commercial advertisement is likely not void of any non-commercial information that contributes to the public dialogue.[59]

Examples of the commercial advertisements that blur the lines between advertising and art abound.  Take for example a popular Levi’s Jeans advertising campaign Go Forth.[60]  In a commercial spot from the campaign, the viewer sees images of twenty-somethings flit across the screen as the original recording of Walt Whitman reading his poem, Pioneers! O Pioneers!, plays in the background.[61]  “Whitman’s verse allows Levi’s to evoke not only its proud history but a forward-looking present—the pioneering, American mindset that Whitman captured and that Levi’s hopes to embody,” one commentator suggests.[62]  Similarly, the now famous Apple Macintosh advertisement, Think Different, rolled videos of Albert Einstein, Bob Dylan, Martin Luther King, Jr., Richard Branson, and the like, while Richard Dreyfus reads a poem in the background.[63]  At one point, Dreyfus states, “About the only thing you can’t do is ignore them.  Because they change things.  They push the human race forward.”[64]  Walter Isaacson, Steve Jobs biographer, later said, “By the end, Jobs, along with four or five other people, have written this not as ad copy, but as a manifesto.”[65]  These two examples show clearly how what the Court would call an advertisement is also art—in spite of Levi’s and Apple’s motivation to sell products—that would normally be protected by the First Amendment.

The blurring of the lines between art and advertisements go both ways; that is to say, that sometimes what would normally be considered art becomes an advertisement.  For example, Morgan Spurlock, a documentary filmmaker, created “The Greatest Movie Ever Sold,” a critique of product placement, by funding it exclusively with royalties from product placements.[66]  One critic described the movie as a fusion between advertising and filmmaking—at once a celebration and a criticism of advertising.[67]  “The conceptual joke is that the entire project was financed by conspicuously placed products in a film that is little more than a string of ads for its sponsors,” yet other aspects of the film “lend it a frisson of cultural and intellectual weight.”[68]  Thus, it is unclear whether a court should consider Spurlock’s film an advertisement, a documentary, or both.  If the result is both, then a court would be met with a quandary as courts have traditionally considered movies as bastions of free speech[69] and advertising not.[70]

Obviously, not all advertising is created equal, and at times some advertisements will be relatively barren of artistic components.[71]  Similarly, some traditionally protected speech will have a stronger relationship to advertising than other traditional speech.[72]  It is because of these “commonsense”[73] characteristics of twenty-first century advertising that it is impossible to make a distinction between protected speech, and what would otherwise be protected speech but is not because it also “propose[s] a commercial transaction.”[74]  As shown, in many instances it is no longer true that advertisements “do[] ‘no more than propose a commercial transaction.’”[75]  Instead, advertising today can and often does critically comment on “social, political, esthetic, moral, and other ideas and experiences” that lie at the core of the First Amendment’s protections.[76]  If nothing else, by treating anything that proposes a transaction as less deserving of First Amendment protections, the Court would be restricting what would otherwise be protected from such restrictions.[77]  This is all to say that the impossibility of separating speech which simply proposes a transaction from the traditionally protected peripheral or central messages of that speech requires the courts apply strict scrutiny to regulations on all speech—commercial or not.[78]

B.  Commercial Speech from a Listener’s Perspective: Refocusing the Analysis

In addition to the inherent difficulties of classifying speech as wholly commercial or wholly non-commercial, there is also another basic rationale from Virginia State Board that cautions against presumptions that commercial speech’s unique characteristics preclude it from First Amendment protections.[79]  In Virginia State Board, the Court acknowledged the “First Amendment right to ‘receive information and ideas,’” recognizing that “freedom of speech ‘necessarily protects the right to receive.’”[80]   Simply, the Court recognized in Virginia State Board that any supposed commercial speech doctrine must address the rights of the speaker to speak, and the listener to listen.[81]  Moreover, there are quite persuasive justifications to protect the rights of the presumed commercial speaker, and, in turn, the listener.[82]  As the Virginia State Board Court stated, “As to the particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.”[83]

Despite many cases’ nods to a listener’s right to receive information, this right often plays only a subordinate—if not cursory—role in most opinions.[84]  There is reason, however, to focus the analysis more so on the listener’s right to receive information.  Indeed, while courts have struggled to formulate a distinction between commercial speech and non-commercial speech,[85] most have accepted without much disagreement[86] that whatever the regulations placed on a speaker, those regulations must not unnecessarily inhibit the public’s right to know.[87]  Moreover, the public’s right to know provides another justification to apply strict scrutiny to so-called commercial speech, because that right is not tied to the basic commercial characteristics that served as the original rationale for providing less protection to that speech.[88]  Instead, that right is tied solely to the inherent belief that society is benefitted by the “’open marketplace of ideas’ protected by the First Amendment.”[89]  As Justice Holmes stated:

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, . . . .  I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe . . ., unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law . . . .[90]

What Justice Holmes first expounded as now blossomed into the well accepted idea that the “marketplace” is enriched by greater amounts of “social, political, esthetic, moral, and other ideas and experiences . . . .”[91]  This information—commercial or not—may entertain, inspire, inform, affect, or otherwise bring to the citizen ideas that would have otherwise been lost to them, and thereby increase competition in the “marketplace of ideas.”[92]

Thus, just as the Court almost did in 44 Liquormart,[93] it should finally discard the Central Hudson test, recognizing that it is impossible to distinguish commercial advertising from non-commercial advertising—a necessary predicate to the test[94]—and that the public’s right to receive such information is too often relegated to a subordinate class—a class, which the Court has nonetheless ruled, enjoys the protection of the First Amendment.[95]

C.  Applying a New Approach to Commercial Advertisements of Legal Synthetic Cannabinoids

The current controversy over the advertising of synthetic cannabinoids provides an excellent illustration of just how difficult it is to apply the label of “commercial speech” to a message so that it may be regulated without also sweeping into the regulation protected speech.[96]  For example, one synthetic cannabinoid seller’s advertising speaks to buying the product, but also conveys what would normally be protected political speech:  “The good ole Gov [sic] is getting hammered over next years HUGE budget deficit! . . .  Lets [sic] help the Gov [sic] out by seeing how much tax revenue we can generate on the Louisiana Legal Potpourri!”[97]  Indeed, this message is attempting to sell a product, but is nonetheless commentating on the politics and economics surrounding the Louisiana governor’s attempts to reduce the state’s deficit.[98]  Thus, banning this message, because it is related to a commercial transaction of synthetic cannabinoids, would also result in a ban on peripheral political messages within that commercial speech.[99]

Consequently, accepting such an advertisement as wholly commercial, that is, of “less [a] constitutional moment” under the Court’s previous decisions, appears to suggest that speech containing commercial and non-commercial messages is subject to less protection, simply because of its commercial speech component.[100]  Such a conclusion—one that is necessarily required for the application of Central Hudson—seems “to have nothing more than policy intuition to support it.”[101]  The cracked foundation on which Central Hudson sits further weakens when one considers the First Amendment rights of those reading advertisements about synthetic cannabinoids.[102]  It is only through access to such legal information that consumers can make knowing and intelligent decisions about the synthetic cannabinoids—and even about the politics within the message; “To this end, the free flow of commercial information is indispensable. . . . Therefore, even if the First Amendment were thought to be primarily an instrument to enlighten public decisionmaking in a democracy, [it cannot be said] that the free flow of information does not serve that goal.”[103]

Taken together, the false dichotomy between these types of speech and the rights of the listener raise serious questions as to the constitutionality of blanket bans on commercial advertising in general and of synthetic cannabinoids specifically.[104]  Indeed, blanket bans on commercial speech can operate as a censor in many instances.[105]  For this reason, the Court has, as a general rule, refused to create First Amendment “vice” exceptions for predominately legal products, i.e. lottery tickets, alcohol, and tobacco, out of fear that such exceptions would have “the unfortunate consequence of . . . allowing state legislatures to justify censorship by the simple expedient of placing the ‘vice’ label on selected lawful activities.”[106]  Moreover, the apparent implication of blanket bans is that for all intents and purposes the product and the potential controversy surrounding the product are removed from the public discourse.[107]  Thus, such bans on commercial speech “not only hinder consumer choice, but also impede debate over central issues of public policy.”[108]  In one such instructive case, the Seventh Circuit Court of Appeals, upheld a Federal Trade Commission (FTC) order to stop an industry group from commenting on a suggested link between eggs and health problems.[109]  Its ruling in favor of the FTC, essentially “excluded one sector of society from participating in the public debate.”[110]

A court applying the Central Hudson analysis to the advertising of synthetic cannabinoids would no doubt reach a similar conclusion as did the Seventh Circuit.  Nonetheless, this result would not be supported by the original rationale of Virginia State Board and would be based on the false distinction between commercial and non-commercial speech.[111]  Applying strict scrutiny to an advertising ban on synthetic cannabinoids would, on the other hand, bring logical and jurisprudential clarity to commercial speech jurisprudence.[112]  Indeed, such an approach would alleviate obvious difficulties and controversies by no longer requiring a court to determine the “commercialness” of the speech in question.[113]  Moreover, it would strictly protect the rights of the listener to receive the commercial information.[114]  Thus, in order to justify a total ban on synthetic cannabinoids, the government would have to show both a compelling governmental interest for the regulation and that the regulation is narrowly tailored.[115]  Preventing the advertising of products that are legal—but nevertheless may prove dangerous to  minors[116]—likely amounts to a compelling governmental interest.[117]  Nonetheless, the blanket bans that failed in 44 Liquormart and Central Hudson, would similarly fail under the more demanding strict scrutiny standard.[118]  While the Central Hudson test required only “a fit that is not necessarily perfect, but reasonable,” the government’s burden would be greater under a narrowly tailored standard.[119]  That is, the government would have to show that the ban advances the compelling governmental interest, is not overinclusive, is not underinclusive, and is the least restrictive alternative.[120]  Because a blanket ban would prevent advertising to minors as well as to adults, the ban would likely be overinclusive.[121]  Indeed, under a blanket ban, “the law does more than simply keep children away from speech they have no right to obtain-it interferes with the rights of adults to obtain constitutionally protected speech and effectively ‘reduce[s] the adult population . . . to reading only what is fit for children.’”[122]

III. Maintaining Regulations on the Economic Characteristics of Protected Speech

            Despite complete bans on advertising likely failing an analysis under strict scrutiny, the government may still regulate—consistent with the First Amendment—the other characteristics of the product.[123]  Indeed, the Court has accepted time, place, and manner regulations—even of non-commercial speech—“provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information.”[124]  Additionally, courts also have accepted that such restrictions encompass “disclaimer warning[s] of the dangers of alcohol.”[125]  As such, even allotting full First Amendment protections to commercial speech does not necessarily leave the government powerless to regulate such speech by requiring it to carry disclaimers, for example.[126]  Thus, it is likely that the government could require that producers and vendors of synthetic cannabinoids label their products with disclaimers and perhaps warnings of the dangers associated with smoking such a product.[127]

Furthermore, such an approach is truer to traditional conceptions of the First Amendment and its relation to the market place of ideas, that is, where the people, after weighing various considerations choose their victor.[128]  This, as opposed to the government, which is “of course, entitled to take [a position] and to attempt to persuade the American people of its validity,” but which “is emphatically not entitled to monopolize the debate or to suppress the expression of opposing points of view” from monopolizing all discussion about matters that may otherwise implicate First Amendment concerns.[129]  As opposed to an all-out monopoly on an idea, the labeling regulations would provide the consumer with the necessary safety information, while at the same time preventing to some degree “the very sort of paternalistic interest which the First Amendment precludes the state from asserting.”[130]

IV. Conclusion

The commercial speech doctrine has long been susceptible to judicial manipulation, and has shown that even the most basic assumption regarding the classification of commercial speech as such raises insurmountable obstacles.[131]  As such, Central Hudson should finally be rejected as jurisprudential imbroglio.  Under strict scrutiny, restrictions on what one would previously have called “commercial speech” would deserve similar—and more consistent protections—than under Central Hudson, while not requiring any inquiry into the “commercialness” of the speech.[132]  At its most basic, commercial speech through advertising no doubt contributes to the marketplace of ideas, and, therefore, listeners have the right—in spite of the underlying commercial motive—to receive such information.[133]  Indeed, “the remedy to be applied is more speech, not enforced silence.”[134]  Thus, a judicial analysis of commercial speech regulations should be consistent with the majority of speech that has traditionally received First Amendment.  Such an analysis, in this case, would protect producers and vendors of legal synthetic cannabinoids from blanket advertising bans—subject to disclaimers that survive strict scrutiny.[135]


[1] Elisabeth L. Sylvester, Art in Advertising 146 (1891).

[2] See generally Mary Carmichael, Fake-Pot Panic, Newsweek, (Mar. 4, 2011), http://www.newsweek.com/2010/03/03/fake-pot-panic.html.

[3] Jenifer Goodwin, ‘Fake Marijuana’ Users Showing Up in Emergency Rooms, (Nov. 11, 2011), MedicineNet.com, http://www.medicinenet.com/script/main/art.asp?articlekey=122029.

[4] Sonja Isger, No more ‘Mr. Nice guy’: Growth of Use of Synthetic Marijuana Has Health, Law Enforcement, Treatment Officials Seeking Ban, Palm Beach Post, (Oct. 21, 2010), http://www.palmbeachpost.com/news/real-dangers-of-fake-pot-synthetic-marijuana-use-985608.html?viewAsSinglePage=true.

[5] Id.

[6] Id. Specifically, reports indicate that the drug may cause a wide variety of effects including: “dizziness, nausea, agitation, abnormally fast heartbeat and hallucinations. Some patients are in a coma, others have heart dysrhythmia.” Id.

[7] Goodwin, supra note 3.

[8] Id. Chelyen Davis, Assembly Outlaws Synthetic Drugs, Fredericksburg.com, (Feb. 27, 2011), http://fredericksburg.com/News/FLS/2011/022011/02272011/609986.  The Drug Enforcement Agency also banned JWH-018 and three similar compounds.  See Morgan Cook, Synthetic Marijuana Illegal as of Tuesday, NCTimes.com, http:// http://www.nctimes.com/news/local/sdcounty/article_d000d0ec-653e-51a8-bc3d-55e144f415c1.html.

[9] See Rebekah Allen, Potpourri, Made to Legally Replicate Marijuana, ‘Could Wind Up Killing’, The Advocate (Baton Rouge, La), Oct. 2, 2010, at A1. One spokeswoman for the Baton Rouge Sheriff’s Office stated, “After the law passed, our detectives checked around town, and they were removed from shelves.  Recently, however, they have made them back on the shelves reformulated.”  Id.   See also Cook, supra note 8 (stating that even with the laws “synthetic drug manufacturers can easily tweak the compounds they use so that they aren’t technically a schedule 1 substance, but still have the same effects”).

[10] While this remedy may seem outlandish to some, it is not entirely novel. Indeed, the Montana legislature instituted a similar approach in order to ban the advertising of medicinal marijuana. The restriction read, “Persons with valid [marijuana] registry identification cards may not advertise marijuana or marijuana-related products in any medium, including electronic media.” Montana Marijuana Act, S.B. 423 § 20, 62nd Legislature (2011).

[11] “Congress shall make no law . . . abridging the freedom of speech . . . .” U.S. Const. amend. I.

[12] This comment focuses specifically on those synthetic cannabinoids that are legal, despite the efforts of legislatures to ban those substances.  The First Amendment likely does not protect advertisers of synthetic cannabinoids that are illegal.  See Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557, 563-64 (1980) (where the Court concluded that “the government may ban forms . . . commercial speech related to illegal activity”).  But see, e.g., Sylvia A. Law, Addiction, Autonomy, and Advertising, 77 Iowa L. Rev. 909, 941 (1992) (quoting National Gay Task Force v. Board of Educ., 729 F.2d 1270 (10th Cir. 1984)) (“The First Amendment does not permit someone to be punished for advocating illegal conduct at some indefinite future time.”).

[13] Law, supra note 12, at 940.

[14] Id. at 912.  (“Commercial speech promoting use of substances that are harmful and addictive for a substantial portion of users deserves only minimal constitutional protection because such speech does not promote any of the values animating the First Amendment.”).  See also Capital Broad. Co. v. Mitchell, 333 F. Supp. 582 (D.D.C. 1971), aff’d 405 U.S. 1000 (1972).

[15] Capital Broad. Co., 333 F. Supp. at 591 (quoting Banzhaf, III v. Federal Communications Commission, 405 F.2d 1082 (D.C. Cir. 1968), cert. denied, 396 U.S. 842 (1969).  See also Virginia State Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 772 n.24 (1976).

[16] The four factors of the Central Hudson test are: (1) the speech must not be misleading or unlawful; (2) the state interest in restricting the speech must be substantial; (3) the regulation must “directly advance[]” that interest; and (4) such regulation must not be “more extensive than is necessary to serve that interest.”  Central Hudson, 447 U.S. at 564.

[17] Despite the varied jurisprudence discussed infra, settled jurisprudence has shown that speech, even if projected by the use of a paid-for media, still retains its protection under the First Amendment, as does speech that is necessarily transmitted through a media that is sold.  Virginia State Bd., 425 U.S. at 761.

[18] Id. at 757 (citing Kleindienst v. Mandel, 408 U.S. 753, 762-63 (1972)).

[19] Virginia State Bd., 425 U.S. at 748.

[20] Id. at 760, 758.

[21] Id. at 765 (“Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price . . . .  Therefore, even if the First Amendment were thought to be primarily an instrument to enlighten public decisionmaking in a democracy, we could not say that the free flow of information does not serve that goal.”).

[22] Id. at 757 (citing Procunier v. Martinez, 416 U.S. 396, 408-409 (1974) (upholding inmates’ families’ rights to receive letters from loved ones)).

[23] Virginia State Bd., 425 U.S. at 756.

[24] See Central Hudson, 447 U.S. at 566.  In Central Hudson, the Court qualified its holding in Virginia State Board, which was perhaps summed up best by then Justice Rehnquist as applying the protections of the First Amendment to commercial speech, “so long as it is not misleading or does not promote an illegal product or enterprise.”  Virginia State Bd., 425 U.S. at 781 (Rehnquist, J., dissenting).

[25] See supra note 16.

[26] Central Hudson, 447 U.S. at 562.  The Court also rejected a “highly paternalistic” approach where the government would have the power to suppress speech for the good of the people.  Instead, it stated that “people will perceive their own best interests if only they are well enough informed, and . . . the best means to that end is to open the channels of communication rather than to close them.”  Virginia State Bd., 425 U.S. at 770.

[27] Central Hudson, 447 U.S. at 559.

[28] See, e.g., Anheuser-Busch, Inc. v. Schmoke (Anheuser-Busch II), 101 F.3d 325 (4th Cir. 1996), cert. denied, 520 U.S. 1204 (1997) (where the Fourth Circuit Court of Appeals upheld a ban on outdoor advertiser for alcohol).  But see Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (where the Supreme Court struck down a similar ban on outdoor advertising for tobacco products).  Scholars have also questioned the test’s ability to render consistent results, arguing that the test can largely be manipulated to suit a court’s desired outcome.  Indeed, “ever since [the advent of Central Hudson], judges . . . have filled quite a bit of space in the case reporters trying to figure out precisely what forms of regulation the four-part test permits. We know that it permits more regulation than . . . noncommercial speech.  Beyond that, however, the cases have been able to shed little light on Central Hudson.”  Alex Kozinski & Stuart Banner, Who’s Afraid of Commercial Speech?, 76 Va. L. Rev. 627, 631 (1990).

[29] Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986).

[30] Id. at 342.

[31] 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).

[32] Id. at 505.

[33] See Id. at 525 (Thomas, J., concurring in part, and concurring in the judgment) (concluding that a strict application of Central Hudson was truer to the rationale of Virginia State Board); John M. A. DiPippa, Regulating Food Advertisments: Some First Amendment Issues, 28 U. Ark. Little Rock L. Rev. 413, 418 (2006) (arguing that 44 Liquormart not only marked a stricter interpretation of Central Hudson, but suggested the eventual overturning of the test). 

[34] 131 S.Ct. 2653 (2011).

[35] Id. at 2660.

[36] Id. at 2664-65.

[37] Id. at 2667.  Notably, the Court failed to put forward the Central Hudson test’s four factors, and instead stated the test only demands that the state “show at least that the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest.”  Id. at 2667-68.

[38] See similarly Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985).

[39] See Darrel C. Menthe, The Marketplace Metaphor and Commercial Speech Doctrine: Or How I Learned to Stop Worrying About and Love Citizens United, 38 Hastings Const. L.Q. 131 (2011) (arguing that Citizens United will lead to the demise of Central Hudson).

[40] See Citizens United v. Federal Election Comm’n, 130 S.Ct. 876, 913 (2010) (overruling Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) by stating that “the Government may not suppress political speech on the basis of the speaker’s corporate identity”).

[41] See supra note 20.

[42] Indeed, one is a speaker-based rationale, and the other is a content-based rationale.  See Menthe, supra note 39.

[43] 131 S.Ct. at 2668.

[44] Law, supra note 12, at 928. (arguing that “the benefits of free speech are not limited to political dialogue but extend to any exchange of ideas or information enhancing individual liberty and making individual choice better informed”).

[45] R.A.V. v. St. Paul, Minn., 505 U.S. 377, 403 (1992) (White, J., concurring in judgment).  The Court has not extended complete First Amendment protection to categories of speech such as “fighting words,” speech that causes a clear and present danger, obscenity, and libel.  Law, supra note 12, at 926.

[46] Central Hudson, 447 U.S. at 563 (stating that commercial speech, “although meriting some protection, is of less constitutional moment than other forms of speech”).

[47] See 44 Liquormart, 517 U.S. at 522 (Thomas, J., concurring in part, and concurring in the judgment) (stating that there is no “philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial’ speech”); Kozinski & Banner, supra note 28, at 637 (“Much expression is engaged in for profit but nevertheless receives full first amendment protection. . . . Film producers, book publishers, record producers—all who engage in their chosen profession for profit—are fully protected. Profit motive is clearly not a factor very useful for classifying speech.”) (emphasis added); DiPippa, supra note 33, at 417 (concluding 44 Liquormart, where four Justices would have discarded the Central Hudson test, suggests that the Court may overrule it in the future.)

[48] Virginia State Bd., 425 U.S. at 765.  In Virginia State Board, for example, the Court distinguished Breard v. Alexandria, 341 U.S. 622 (1951) (where the Court upheld a conviction of a door-to-door salesman) and Martin v. Struthers, 319 U.S. 141 (1943) (where the Court reversed the conviction of a door-to-door evangelist), writing that there was “no element of. . . commercial” solicitations in StruthersId. at 758.  The Court did not, however, address whether a conviction would be upheld if an evangelist was selling religious materials.

[49] Virginia State Bd., 425 U.S. at 772.

[50] For example, in Virginia State Board, the Court suggested that both the greater objectivity and hardiness of commercial speech may allow the government “to require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers . . . to prevent its being deceptive.” Id. at 772 n.24.

[51] See generally Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557 (1980); Posadas de Puerto Rico Associates v. Tourism Co., 478 U.S. 328 (1986); Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173 (1999); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).

[52] DeSalvo v. State of Louisiana, 624 So.2d 897, 899-900 (La. 1993), cert. denied, 510 U.S. 1117 (1994).  See also 44 Liquormart, 517 U.S. at 525 (explaining that the verifiability of commercial speech allows for regulation insuring that the speech remains objective, and that the “hardiness” of the speech—due to the inherent economic motives of the speech—relieves fears that speech will be chilled).  Nonetheless, the Court failed to explain how objectivity might apply to more nebulous advertising that does “not convey information, but rather create[s] an image, invoke[s] a mood[s], appeal[s] to emotion, and associate[s] the product with a vision of the good life.”  Law, supra note 12, at 931.  See also 44 Liquormart, 517 U.S. at 523 n.24 (Thomas, J., concurring in part, and concurring in the judgment) (writing Court’s distinctions between commercial and non-commercial speech are “open to question”).  Moreover, as the Federal Trade Commission has concluded, “[c]ommercial speech is everywhere – particularly in the online marketplace,” and therefore the ramifications of treating commercial speech differently are even greater in the twenty-first century.  Deborah Platt Majoras, Chairman, Fed. Trade Comm’n, Address at the University of North Carolina School of Journalism and Mass Communicatino:  The Vital Role of Truthful Information in the Marketplace (Oct. 11, 2007).

[53] See Kozinski & Banner, supra note 28, at 635 (stating that defining commercial speech by these differences is a poor measure, because, for example, the objectivity comparison fails “because there are many varieties of noncommercial speech that are just as objective as paradigmatic commercial speech and yet receive full first amendment protection.”) (emphasis added).  See also Virginia State Bd., 425 U.S. at 759.

[54] Virginia State Bd., 425 U.S. at 761.  But see 44 Liquormart, 517 U.S. at 525 (Thomas, J., concurring in part, and concurring in the judgment) (describing “the near impossibility of severing ‘commercial’ speech from speech necessary to democratic decisionmaking”).

[55] Law, supra note 12, at 931.  See also Jacob Sullum, Cowboys, Camels, and Kids, Reason.com (April 1998), http://reason.com/archives/1998/04/01/cowboys-camels-and-kids.

[56] Capital Broad. Co., 333 F. Supp. at 591 (Wright, J., dissenting) (quoting Banzhaf, 405 F.2d 1082).  See Kozinski & Banner, supra note 28, at 642 (citing National Commission on Egg Nutrition v. FTC, 570 F.2d 157 (7th Cir. 1977), cert. denied, 439 U.S. 821 (1978)).

[57] Law, supra note 12, at 932.

[58] See supra note 53.

[59] Indeed, such a conclusion would not amount to breaking new ground.  See Capital Broad. Co., 333 F. Supp. at 592 n.36.  (Wright, J., dissenting) (explaining that in spite of the fact that the Banzhaf court did not find certain advertisements to be “political,” it did find “that the product advertising itself ‘implicitly states a position on a matter of public controversy’”) (emphasis added).  See supra note 21.

[60] Seth Stevenson, Walt Whitman Thinks You Need New Jeans, Slate, (Oct. 16, 2009), http://www.slate.com/

articles/business/ad_report_card/2009/10/walt_whitman_thinks_you_need_new_jeans.html03/03/fake-pot-panic.html.

[61] See Levi’s – OPioneers! (Go Forth) Commercial, YouTube (July 5, 2009), http://www.youtube.com/watch?v=HG8tqEUTlvs.

 

[62] Stevenson, supra note 60.

[63] See Mac Ad – Think Different – Apple, YouTube (April 26, 2006), http://www.youtube.com/watch?v=jULUGHJCCj4.

[64] Id.

[65] CBSNewsOnline, Steve Jobs, part I, YouTube (October 23, 2011), http://www.youtube.com/watch?v=1jqSK8Qv4ZY.

[66] The full movie title is “Pom Wonderful Presents: The Greatest Movie Ever Sold.”  See IMDB, http://www.imdb.com/title/tt1743720/ (last visited Oct. 30, 2011).

[67] See Stephen Holden, The Hidden Persuaders Come Out in Full Force, New York Times, (April 21, 2011), http://movies.nytimes.com/2011/04/22/movies/pom-wonderful-presents-greatest-movie-ever-sold-review.html.

[68] Id.

[69] See, e.g., Erznoznik v. Jacksonville, 422 U.S. 205, 218 (1975) (Douglas, J., concurring) (“Any ordinance which regulates movies on the basis of content, whether by an obscenity standard or by some other criterion, impermissibly intrudes upon the free speech rights guaranteed by the First and Fourteenth Amendments.”) (emphasis added).

[70] Central Hudson, 447 U.S. at 563 (stating that the “Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression”).

[71] For example, the advertising of prices of prescription drugs in Virginia State Board is no doubt distinguishable from the advertising in the Levi’s commercial or the Apple commercial.

[72] See, e.g., Jeff Steinbrunner, The Ten Most Shameless Product Placements in Movie History, Cracked.com, (August 26, 2008) (discussing product placement from its success in E.T. with Reese’s Pieces to Transformers, where GM offered director Michael Bay three million dollars to use GM automobiles for the robots.

[73] Virginia State Bd., 425 U.S. at 772 n.24.

[74] Id. at 762 (quoting Pittsburg Press Co. v. Human Relations Comm’n, 413 U.S. 376, 385 (1973).  After Citizen’s United, no argument can be made that commercial speech is protected to a lesser degree not solely because it proposes a commercial transaction but also because the speaker is a commercial entity and not a citizen.  See Citizens United, 130 S.Ct. 876.  See also Menthe, supra note 39 (stating that “Citizens United radically affirmed the principle that the First Amendment must be neutral as between different speakers . . .”).

[75] Id.

[76] Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969).  The major contribution that commercial advertising makes is to the creation of knowledge through the marketplace of ideas.  See Robert Post, Participatory Democracy and Free Speech, 97 Va. L. Rev. 477, 478 (2011) (arguing that there are three core constitutional values including: “(1) the creation of knowledge; (2) individual autonomy; and (3) democratic self-government”).

[77] But see Bd. of Tr.’s v. Fox, 492 U.S. 469, 474 (1989) (declining the suggestion that “pure speech and commercial speech are ‘inextricably intertwined,’ and that the entirety must therefore be classified as noncommercial”).

[78] The application of strict scrutiny to presumably commercial advertising is not a wholly novel idea.  Parties have suggested it in numerous cases, but this idea has not been developed in the Court’s jurisprudence.  See, e.g., Lorillard Tobacco Co. 533 U.S. at 554; Coyote Publishing, Inc. v. Miller, 598 F.3d 592, 599 n.10 (9th Cir. 2010).

[79] Again, it’s necessary to note that in many cases, recognizing the speech in question as “commercial” is a foregone conclusion.  Capital Broad. Co., 333 F. Supp. at 584.  Yet, as has been shown, commercial messages not only transmit objective information, but also may comment on the political environment, or seek to inspire, emote, and persuade its listener.  See discussion infra Part II.A.

[80] Virginia State Bd., 425 U.S. at 757 (citing Red Lion Broadcasting Co., 395 U.S. at 390; Procunier v. Martinez, 416 U.S. 396, 408-09 (1974); Lamont v. Postmaster General, 381 U.S. 301 (1965)).  See also Stanley v. Georgia, 394 U.S. 557, 562 (1969) (stating that it is now well established that the Constitution protects the right to receive information and ideas”).

[81] Id. at 757 (writing that where there is a right to advertise, “there is a reciprocal right to receive the advertising, and it may be asserted by these Appellees”).

[82] Capital Broad. Co., 333 F. Supp. at 591 (Wright, J., dissenting) (quoting Red Lion Broad., 395 U.S. at 390) (“It is the right of the viewers and listeners . . . which is paramount.  It is the purpose of the First Amendment to preserve an uninhibited marketplace . . . .”).  See also C. Edwin Baker, An Ocean Apart? Freedom of Expression in Europe and the United States: The First Amendment and Commercial Speech, 84 Ind. L.J. 981 (2009) (writing that the First Amendment not only protects the speaker, but “provides for the autonomy of the listener in that the law must not stop her from trying to hear anything that someone else has a right to and chooses to say to her”).

[83] Virginia State Bd., 425 U.S. at 763.

[84] See, e.g., Greater New Orleans, 527 U.S. at 185 (noting that the availability of information empowers consumer choices, and that even if the speaker is motivated by profit, “the interests of, and benefit to, the audience may be broader”); Lorillard Tobacco Co., 533 U.S. at 555 (conceding that even if “commercial speech” is subject to less constitutional protection, a regulation “cannot unduly impinge on the speaker’s ability to propose a commercial transaction and the adult listener’s opportunity to obtain information about products”) (emphasis added).

[85] See discussion supra Part II.A.

[86] But see Virginia State Bd., 425 U.S. at 782 (Rehnquist, J., dissenting).

[87] See 44 Liquormart, 517 U.S. at 518 (Thomas, J., concurring in part, and concurring in the judgment) (writing that a governmental regulation that seeks to keep the public “ignorant” is “per se illegitimate and can no more justify regulation of ‘commercial’ speech than it can justify regulation of ‘noncommercial’ speech”).

[88] Id.

[89] See Citizen’s United v. Federal Election Comm’n, 130 S.Ct. 876, 906 (2010) (speaking to society’s need for information in order to make political decisions).

[90] Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (emphasis added).

[91] Red Lion Broadcasting Co., 395 U.S. at 390.

[92] See Law, supra note 12.

[93] DiPippa, supra note 33, at 417 (concluding that four justices would have discarded Central Hudson for strict scrutiny in 44 Liquormart).

[94] See Kozinski & Banner, supra note 28, at 642 (explaining the difficulties that some courts must face when deciding whether a certain advertisement satisfies the “threshold question” of whether the speech is commercial). 

[95] See discussion supra Parts II.A-B.

[96] This was exactly the argument of Judge Wright in his dissent in Capital Broad. Co., that is, commercial speech and protected commentary, for example, are not always mutually exclusive.  As such, he cautioned that one should not let “the unconventional aspects of the problem . . . distract us from the basic First Amendment principles involved.”  Capital Broad. Co., 333 F. Supp. at 590 (Wright, J., dissenting).

[97] Dem Legal Scents, http://www.demlegalscents.com (last visited Feb. 28, 2011).

[98] Id.  The advertisement continues: “Now Gov’s [sic] critics probably wont like the fact that were [sic] helping the Gov out like this . . . but screw em [sic]! Politics is dirty, but Louisiana Legal Potpourri aint gotta [sic] be. Let the revenue raising campaign begin!”  Id.

[99] See Bd. of Tr.’s, 492 U.S. at 474.

[100] Indeed, the logic underlying such conclusion, that is, that the presence of commercial speech in spite of the simultaneous presence of non-commercial speech determines the constitutional analysis, remains unexplained.  See, e.g., Capital Broad. Co., 333 F. Supp. at 592  (Wright, J., dissenting) (where the United States District Court for the District of Columbia upheld a ban on tobacco advertising on broadcast media despite the fact that the advertisements were “controversial statements on important public issues”).  See also Virginia State Bd., 425 U.S. at 760 (stating that the “relationship of speech to the marketplace of products or of services does not make it valueless in the marketplace of ideas”).

[101] See 44 Liquormart, 517 U.S. at 517 (Scalia, J., concurring in part, and concurring in the judgment).

[102] See discussion supra Part II.B.

[103] Virginia State Bd., 425 U.S. at 765.

[104] Such a conclusion is not radical.  Indeed, when formulating the Central Hudson test, the Court pointed out that even under this developing intermediate level of scrutiny, it had “not approved a blanket ban on commercial speech unless the expression itself was flawed in some way, either because it was deceptive or related to unlawful activity.”  Central Hudson, 447 U.S. at 566 n.9.

[105] 44 Liquormart, 517 U.S. at 513.

[106] Id. at 514.  The Court seems unwilling to uphold statutes whose purpose is primarily to protect citizens from themselves because “it is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.”  Virginia State Bd., 425 U.S. at 771.

[107] See 44 Liquormart, 517 U.S. at 518-19 (Thomas, J., concurring in part, and concurring in the judgment).

[108] Id. at 503 (citing Central Hudson, 447 U.S. at 566 n.9).

[109] See Kozinski & Banner, supra note 28, at 642 (citing National Commission on Egg Nutrition v. FTC, 570 F.2d 157 (7th Cir. 1977), cert. denied, 439 U.S. 821 (1978)).

[110] Id. at 643.

[111] See discussion supra Parts II.A-B.

[112] See Kozinski & Banner, supra note 28, at 650 (“If we treat speech as speech, commercial or not, we fall back on standard content-neutral analysis: Government regulation is constitutional where it furthers an important governmental interest, the governmental interest is unrelated to the suppression of free expression, and the restriction on expression is no greater than necessary.”).

[113] See discussion supra Parts II.A-B.

[114] Id.

[115] R.A.V., 505 U.S. at 381.

[116] See Allen, supra note 9.  But see 44 Liquormart, 517 U.S. at 503 (writing that principles of free speech “directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good”). 

[117] New York v. Ferber, 458 U.S. 747 (1982) (where the Court upheld a statute criminalizing the recording a minor performing a sexual act, because “safeguarding the physical and psychological well-being of a minor” is “compelling”) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982)).

[118] See, e.g., 44 Liquormart, 517 U.S. at 525 (ruling that because the state’s “regulation fails even the less stringent standard set out in Central Hudson, nothing here requires adoption of a new analysis,” that is, strict scrutiny).

[119] Compare Posadas, 478 U.S. at 341-42 (where, under the intermediate scrutiny of Central Hudson test, the Court upheld a broad ban on advertising directed towards Puerto Ricans writ large), with R.A.V., 505 U.S. at 311 (where, under strict scrutiny, the Court struck down a “narrowly construed” statute that criminalized, inter alia, burning a cross in others’ yards).

[120] See Republic Party of Minn. v. White, 416 F.3d 738, 751 (8th Cir. 2005) (“A narrowly tailored regulation is one that actually advances the state’s interest (is necessary), does not sweep too broadly (is not overinclusive), does not leave significant influences bearing on the interest unregulated (is not underinclusive), and could be replaced by no other regulation that could advance the interest as well with less infringement of speech (is the least-restrictive alternative).”) (emphasis added).

[121] See infra note 122.

[122] See Reno v. American Civil Liberties Union, 521 U.S. 844, 888 (O’Connor, J., concurring in the judgment and dissenting in part) (citation omitted).

[123] While scholars have debated the line between commercial speech regulation and economic regulation, discarding the categorization of so-called commercial speech relieves such problems of definition by limiting governmental regulation to only that which directly relates to the product—and not expression or speech about the product, unless of course such regulation passes strict scrutiny.  See, e.g., 15 U.S.C. § 1333 (2011).

[124] Virginia State Bd., 425 U.S. at 771.  The Court has upheld regulations and restrictions on traditionally protected political speech.  For example, the Supreme Court has held that that “nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses-so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not.”  R.A.V., 505 U.S. 385-86.  (citing Texas v. Johnson, 491 U.S. 397, 406-07 (1989) and United States v. O’Brien, 391 U.S. 367, 376-77 (1968)). 

[125] Dunagin v. Oxford, Miss., 718 F.2d 738, 751 (5th Cir. 1983) (en banc), cert. denied, 467 U.S. 1259 (1984).

[126] Indeed, under the broad grant of First Amendment protections by Virginia State Board (before Central Husdon limited the protection granted), the Court even suggested that commercial speech may be required to appear “in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent its being deceptive.”  Virginia State Bd., 425 U.S. at 772 n.12.  This conforms to other time, place, manner restrictions placed on speech traditionally protected by the First Amendment.  See infra note 128.

[127] But see United States v. United Foods, Inc., 533 U.S. 405, 418-19 (explaining that “compelling speech raises a First Amendment issue just as much as restricting speech”) (citation omitted).  Nonetheless, disclaimers may have more success clearing the bar of strict scrutiny’s narrow tailoring requirement, because disclaimers are not as likely to be overinclusive, underinclusive, or more restrictive than other alternatives like complete bans.

[128] Red Lion Broadcasting Co., 395 U.S. at 390.

[129] Capital Broad. Co., 333 F. Supp. at 593 (Wright, J., dissenting)

[130] Id. at 594. (Wright, J., dissenting)

[131] See discussion supra Parts II.A-C.

[132] See discussion supra Parts II.C.

[133] See discussion supra Parts II.A-B.

[134] Whitney v. California, 274 U.S. 357, 377 (Brandeis, J., concurring).

[135] See discussion supra Parts III.

About Matthew L. Schafer

Matthew L. Schafer graduated from the University of Illinois in 2009 with a Bachelor of Science in Media Studies. He later attended Louisiana State University’s Manship School of Mass Communication where he earned a Masters of Mass Communication and Georgetown University Law Center where he earned his J.D.
This entry was posted in First Amendment and tagged , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s