Constitutional Law: Protection of Individual Rights: First Amendment: Regulation of Speech Content: Commercial Speech

    • Commercial Speech. Generally, commercial speech is protected. However, it may be regulated as to false or deceptive advertising as well as harmful or illegal products.

      • TEST: For unprotected commercial speech[1] Central Hudson Test. Under Central Hudson, in order to be valid, the regulation must directly advance a substantial government interest and it must be narrowly tailored to further that interest.
      • Harmful but lawful products advertising (vice advertising)
        • Apply Central Hudson.
      • Solicitation. Court balances homeowner’s right to privacy with First Amendment right of commercial speech. Then ask whether the regulation in question is narrowly tailored.
        • Ordinance prohibiting all door-to-door solicitation = unconstitutional.
        • Ordinance prohibiting commercial solicitation without homeowner’s consent = UPHELD. Alternative channels of communication were left open.
      • True commercial speech that inherently risks deception can be prohibited.
        • Government may prevent professionals from practicing under a trade name.
        • The government may prohibit an attorney, in person, from soliciting a client for profit.
          • However, if attorney is offering free representation, that’s protected.
          • If attorney sends letters to prospective clients, that’s okay.
        • The government may not prohibit accountants from in-person solicitation of clients for profit.
State law barring attorneys from soliciting accident victims within 30 days of the accident is constitutional.

[1] Note that strict scrutiny is used for protected commercial speech.