The Central Hudson Test and commercial speech regulation

Speech

The Central Hudson Test

Origination

While commercial speech typically receives limited First Amendment protection, two types of commercial speech receive no protection at all. Commercial advertising received free speech protection in the 1970s based on the rationale that ads provide the public with information needed in order to be informed consumers, and thus only misleading and deceptive ads could be barred (Cohn, W. (2009). With the technological inventions that have occurred over the years it became necessary to look at this issue again and set down some standards in which to follow.

Four part test questions

The government may regulate advertising that is false, misleading or deceptive and they can regulate advertising that is for unlawful goods and services. Even truthful adverting for legal goods and services can be regulated, provided that the government can satisfy three different requirements. The first is that they must assert a substantial state interest in order to justify the regulation. Next, they have to demonstrate that the ban on advertising will directly advance the interest of the state. Finally, the state must show that there is a reasonable fit between the state interest being asserted and the government regulation (Pember & Calvert, 2005).

Evolution

Over the last several years the U.S. Supreme Court used Central Hudson Gas v. Public Service Commission (1980) to significantly expand the power of the government at all levels in order to regulate advertising. Because of this, first amendment protection for commercial speech has steadily diminished over the years (Boedecker, Morgan, Wright, 1995).

Central Hudson Cases

Summary of original case

A four-part analysis for commercial speech cases was crafted in Central Hudson Gas & Electric Corp. V. Public Service Commission (1980). The New York Public Service Commission had ordered the state electric utilities not to promote the use of electricity because of a concern that demand would exceed supply. In 1977, the Commission continued its ban but allowed institutional and informational advertising. The Court ruled that the Commission had failed to show that a more limited speech regulation would be ineffective and therefore overturned the advertising ban (Boedecker, Morgan, Wright, 1995).

Unsolicited Advertising

From the beginning of federal attempts to restrict unsolicited phone calls, the government has asserted that its primary interest lies in protecting citizens from invasion of privacy. Three different federal appeals courts have upheld the TCPA and the TSR in four separate challenges. These courts have all shown judicial deference in their consideration of the third part of Central Hudson, relying upon legislative findings and "simple common sense" to support the government interest in shielding citizens from invasions of privacy by the telemarketer, saving them from the cost-shifting of unsolicited fax advertisements and mitigating the problem of potentially deceptive and abusive telemarketing calls (Erickson, 2006).

Restrictions on Free Speech

In Hudson, in order for commercial speech to be protected by the First Amendment it must concern lawful activity and not be misleading. It must be determined whether the declared

Governmental interest to be provided by the restriction on commercial speech is substantial. If both questions have positive answers, it must then be decided whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest (Samoriski, 1999).

The government's interest in regulating commercial speech is considerable if they can show that the harms it seeks to prevent are real, and that the restriction will in fact alleviate these harms to some degree. To be able to show that the regulation is not more wide-ranging than necessary, the regulation must be narrowly drawn, but it does not have to be the least restrictive option available. The government must also show that there is a fit between the means and the ends that have been chosen to accomplish them (Samoriski, 1999).