Commercial Speech Week

There is no question that every single day, most likely multiple times a day, you will come across advertising of some sort. This advertisement could be for your favorite clothing brand or a fast food restaurant such as McDonalds. Most likely, as soon as you read “McDonalds”, the jingle they play at the end of every commercial rang through your head.

So, while we see these commercials every single day, how much do we really think about them? Do we analyze the messages they are conveying, or do we simply take them at face value and move along with our everyday life?

Throughout this week, I realized how little I examined the advertisements I came across every day, whether that was on TV or on the internet. Learning about commercial speech provided me with the insight into what goes into advertising and what rights corporations do and do not have under the First Amendment and advertising. As we explored each step in history leading up to the watershed case for commercial speech, we saw how any speech promoting a transaction transformed into what we see now as protected commercial speech.

It All Started in 1942…

Valentine v Chrestensen became one of the first commercial speech doctrine cases in American history, even though it basically exempted any such speech from First Amendment Protection without citing any reason and/or precedent for this decision. While this commercial speech doctrine did not officially get its name until 1971, the Valentine v Chrestensen case remained unchallenged, allowing the government to regulate businesses.

The breakthrough case that came in 1976 changed the course of commercial speech, in which it overturned the original decision on commercial speech by Valentine v Chrestensen. When the Court struck down a Virginia statute that outlawed price advertising by pharmacists, the infamous Virginia State Board of Pharmacy v Virginia Consumer Council became the new precedent for commercial speech protection under the First Amendment. When discussing his decision on the case, Justice Harry A. Blackmun wrote that, “Misleading, false, or illegal commercial speech could still be regulated.” Following this pivotal case, in 1980 the four part Central Hudson test for commercial speech was established. Four questions in this test must be answered about commercial speech:

1. Is the speech in question eligible for First Amendment protection

2. Does the government have a compelling interest to regulate the speech

3. Is there a close nexus between the regulation and the goal

4. Is the regulation narrowly tailored so as not to squelch too much speech

This test became a very important tool for the courts to use in any commercial speech cases thereafter this was established.

Why Is This Important?

As previously mentioned, we all must see hundreds of advertisements a week, and it is important to know what to look out for when being bombarded with different types of claims that these corporations make for their products. It is important to know if you are being deceived in the advertising, and how you can know if you can make a legitimate claim or not.

It is also essential to know and understand these court cases, as these have a huge impact on our lives every day. We must continue to be smart, knowledgeable consumers of any product we consume on a daily basis. While the Federal Trade Commission, FTC, has a regulation on advertising that states, “Unfair methods of competition and unfair or deceptive acts or practices in affecting commerce are hereby declared unlawful,” consumers must still remain vigilant on how and what they are exposed to every single day.

Learning about the history of commercial speech, I have found myself to be more critical of advertising and noticing the different techniques corporations use to make sure their advertising is legal. There are way too many consequences that these corporations want to avoid for them to be making mistakes now.