Arguments Against Commercial Speech

Thesis:
Government should not be able to compel commercial speech without showing substantial government interest, supported by the Central Hudson test because a less strict protection of compelled commercial speech would not only give more power to government but also violate the First Amendment. Moreover, the Zauderer standard fits under the Central Hudson test and thus should not be treated as a separate test. The Court has started to award a higher degree of protection to commercial speech with passing time (explain how I agree with the court’s higher protection and why). [THESIS IS A WORK IN PROGRESS BUT MORE OR LESS THIS IS THE THESIS IDEA].
Introduction:
To prove my argument I will be starting out with the history of how Supreme Court
determined that commercial speech was protected under the First Amendment and how that protection progressed into including not just restrictions to speech but also compelled speech. I will also be looking at two recent DC Circuit decisions, which have conflicting outcomes making it difficult to predict the outcome of cases when it involves compelled commercial speech because of the courts treating Central Hudson and Zauderer as separate standards. In a 2014 case (AMI), the DC Circuit upheld a USDA requirement that meat companies provide country of origin labeling on the grounds that it was purely factual information justified by an interest in helping customers make informed choices. The following year, in the SEC case, the DC Circuit struck down an SEC requirement that companies disclose whether mineral were “DRC conflict free” on the grounds that the label was value laden and its benefits were purely speculative (the cases will be explained further below). Both the cases dealt with speech compulsions but came out with different results.
Background:
For many years Supreme Court gave commercial speech unprotected status. This unprotected status came from the 1942 Supreme Court case, Valentine v. Chrestensen whereby the plaintiff challenged a New York sanitation ordinance that prohibited the distribution of commercial handbills he had put up offering guided tours of his submarine to the public. Although plaintiff’s handbill consisted of both commercial and non-commercial speech, the Court considered it commercial speech as a whole and held that “the Constitution imposes no such restraint on government as respects to purely commercial advertising.” The Court’s reasoning was based upon the government having the ability to regulate “commercial speech when it concerned articles of commerce.” This outlook changed in 1976 when Supreme Court awarded purely commercial speech protection in the landmark case of Virginia State Board of Pharmacy v.
Virginia Citizens Consumer Council by holding that when speech proposes only a commercial transaction, the First Amendment protects it. In Virginia State Board, suit was brought due to a Virginia statute that ‘prohibited licensed pharmacists from publishing, advertising, or promoting the price of prescription medications.’ Virginia asserted that the statute was needed to establish a professional image of pharmacists. The Court disagreed and determined that there was a greater consumer right to know about different products being offered at different prices than the state’s interest regarding professionalism. Thus, Virginia State Board awarded commercial speech protection but maintained that the protection was not absolute and could be regulated. It is now established that commercial speech is protected under the First Amendment. It is protected against speech compulsions and against speech limitations. Despite this protection, commercial speech does not enjoy the same level of protection as political speech but there are still limits to what a government may compel commercial entities to disclose to
consumers.
I. The two main tests Courts rely on when deciding whether a compelled commercial speech’s mandate is constitutional is the Central Hudson four-prong test and the Zauderer test.
Under Supreme Court jurisprudence, restrictions on commercial speech are generally subject to intermediate scrutiny under the First Amendment. In the landmark case of Central Hudson Gas & Electric Corp. v. Public Service Commission, the Supreme Court set forth a four-part test to determine the constitutionality of a restriction on commercial speech: “ (1) if the communication is neither misleading nor related to unlawful activity, then it merits First Amendment scrutiny as a threshold matter; in order for the restriction to withstand such scrutiny, (2) the State must assert a substantial interest to be achieved by restrictions on commercial speech; (3) the restriction must directly advance the state interest involved; and (4) it must not be more extensive than is necessary to serve that interest.”
In Central Hudson, the Court had to determine whether a regulation of the New York Public Service Commission violated the First Amendment because it completely banned promotional advertising by an electrical utility, thereby restricting commercial speech.
The Court held that the regulation violated the First Amendment because “the expression at issue was neither misleading nor related to unlawful activity; (2) the promotional advertising was not unprotected commercial speech merely because appellant help a monopoly over electricity in its service area; (3) while appellee’s interests in energy conservation and ensuring fair and efficient energy rates were substantial, the link between the advertising ban and appellant’s rate structure was, at most, tenuous, and; (4) because the regulation reached all promotional advertising, it was more extensive than necessary to further appellee’s interest in energy conservation.” In contrast with Central Hudson, Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico held that it was not unconstitutional for Puerto Rico to restrict commercial advertisement of legal casino gambling to residents, because the speech restrictions were permissible because they directly advanced a substantial government interest and were not extensive than necessary. This controversial decision denoted the elasticity of the Central Hudson standard. Since Posadas, the Court continued to conclude conflictingly, first finding increased First Amendment
protection for commercial speech and other times finding that First Amendment is not violated. Due to the