Commercial speech - wikipedia Commercial speech In law, commercial speech is speech or writing on behalf of a business with the intent of earning a profit. It is economic in nature and usually attempts to persuade consumers to purchase the business 's product or service. The Supreme Court of the United States defines commercial speech as speech that `` proposes a commercial transaction ''. Contents 1 In the United States 1.1 History 1.2 Criticism 2 In the European Union 3 See also 4 References In the United States In the United States, commercial speech is `` entitled to substantial First Amendment protection, albeit less than political, ideological, or artistic speech ''. In the 1980 case Central Hudson Gas & Electric Corp. v. Public Service Commission, the U.S. Supreme Court developed a four - part test to determine whether commercial speech regulation violates the First Amendment : Whether the commercial speech concerns a lawful activity and is not misleading Whether the government interest asserted to justify the regulation is `` substantial '' Whether the regulation `` directly advances '' that government interest Whether the regulation is no more extensive than necessary to serve that interest History Until the 1976 Supreme Court case Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, commercial speech in the United States was viewed as an `` unprotected '' category of speech beyond the pale of First Amendment protection. Indeed, the idea of commercial speech was first introduced by the Supreme Court when it upheld Valentine v. Chrestensen in 1942, which ruled that commercial speech in public is not constitutionally protected. In upholding the regulation, the Supreme Court said, `` We are... clear that the Constitution imposes... no restraint on government as respects purely commercial advertising ''. This ruling, however, would be overturned with Virginia State Pharmacy Board v. Virginia Citizens Consumer Council ( 1976 ) and Central Hudson Gas & Electric Corp. v. Public Service Commission ( 1980 ). The Court has recognized that commercial speech does not fall outside the purview of the First Amendment and has afforded commercial speech a measure of First Amendment protection `` commensurate '' with its position in relation to other constitutionally guaranteed expression. The Court has set forth a framework for analyzing commercial speech under intermediate scrutiny : At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Criticism Members of the Supreme Court have expressed doubts about the Court 's differential treatment of commercial speech in relation to other types of speech. Justice Clarence Thomas replied, in 44 Liquormart, Inc. v. Rhode Island ( 1996 ), that `` I do not see a philosophical or historical basis for asserting that ' commercial ' speech is of ' lower value ' than ' noncommercial ' speech. '' Justice Thomas would apply strict scrutiny to regulations of commercial speech. Justice Antonin Scalia expressed `` discomfort with the Central Hudson test, which seem ( ed to him ) to have nothing more than policy intuition to support it ''. U.S. Court of Appeals judge Alex Kozinski criticized the 1942 Valentine v. Chrestensen ruling, stating that `` the Supreme Court plucked the commercial speech doctrine out of thin air ''. In the European union The European Court of Human Rights has held that commercial speech is protected under Article 10 of the European Convention on Human Rights ( ECHR ) on several occasions since the 1980s, but lacks a counterpart to the commercial speech doctrine that exists under U.S. law. In Germany, the courts adopted a strict approach to advertising and commercial speech due to its emphasis on ensuring competition. For example, in Barthold v. Germany ( 1985 ), the European Court of Human Rights held that enjoining a veterinary surgeon for advocating for 24 - hour animal clinics ( which did not exist at the time in Hamburg, Germany ) violated his free expression rights. After the vet was quoted in a newspaper article, he was sued for violating the veterinary association 's rules of professional conduct, which barred vets from advertising, and he was injuncted from making similar statements in the future. In the 1990 Markt Intern Verlag GmbH and Klaus Beermann v. Germany case -- described Europe 's `` leading case concerning speech in commercial context '' -- the European Court of Human Rights concluded that there had been no violation of Article 10 when Germany 's Federal Court of Justice prohibited a publishing company from repeating statements that had been published in a specialist information bulletin criticizing the practices of another company. It noted that the prohibition did not exceed the `` margin of appreciation which national authorities were allowed in laying down, in accordance with Article 10, § 2, formalities, conditions, restrictions or penalties on the exercise of freedom of expression ''. See also First Amendment to the United States Constitution Freedom of speech Professional speech Central Hudson Gas & Electric Corp. v. Public Service Commission Anonymous Online Speakers v. United States District Court for the District of Nevada Valentine v. Chrestensen References Jump up ^ Central Hudson Gas & Elec. v. Public Svc. Comm'n, 447 U.S. 557, 562 ( 1980 ). ^ Jump up to : Morrison, Alan B. ( 2004 ). `` How We Got the Commercial Speech Doctrine : An Originalist 's Recollections ''. Case Western Reserve Law Review. 54 ( 4 ) : 1189. Retrieved 26 January 2018. Jump up ^ Troy, Daniel ( Spring 1998 ). `` Taking Commercial Speech Seriously ''. Free Speech & Election Law Practice Group Newsletter. The Federalist Society. 2 ( 1 ). Retrieved 26 January 2018. Jump up ^ Costello, Sean P. ( 1997 ). `` Strange Brew : The State of Commercial Speech Jurisprudence before and after 44 Liquormart, Inc. v. Rhode Island ''. Case Western Reserve Law Review. 47 ( 2 ) : 681. Jump up ^ `` Today in 1942 : SCOTUS Rules That the First Amendment Does n't Protect Commercial Speech ''. Legal Research Blog. Thomson Reuters. 13 April 2012. Retrieved 26 January 2018. ^ Jump up to : Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 572 ( 2001 ). Jump up ^ Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY, 447 U.S. 557, 566 ( 1980 ). Jump up ^ 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 517 ( 1996 ). Jump up ^ Kozinski, Alex ; Banner, Stuart ( May 1990 ). `` Who 's Afraid of Commercial Speech ? ''. Virginia Law Review. 76 ( 4 ) : 627 -- 653. doi : 10.2307 / 1073208. Retrieved 2017 - 10 - 05. Jump up ^ Krzeminska - Vamvaka, Joanna ( 2008 ). `` Freedom of Commercial Speech in Europe ''. Verlag Dr Kovac, Studien zum Völker - und Europarecht. 58 : 292. doi : 10.2139 / ssrn. 1443922. Retrieved 26 January 2018. Jump up ^ `` Barthold v. Germany ''. Columbia Global Freedom of Expression. Columbia University. Retrieved 26 January 2018. Jump up ^ Council of Europe ( March 2007 ). Freedom of expression in Europe Case - law concerning Article 10 of the European Convention on Human Rights ( PDF ). Strasbourg : Council of Europe Publishing. p. 79. ISBN 978 - 92 - 871 - 6087 - 4. Retrieved 26 January 2018. United States First Amendment case law Establishment Clause Public funding Everson v. Board of Education ( 1947 ) McCollum v. Board of Education ( 1948 ) Walz v. Tax Commission of the City of New York ( 1970 ) Lemon v. Kurtzman ( 1971 ) Marsh v. Chambers ( 1983 ) Mueller v. Allen ( 1983 ) Aguilar v. Felton ( 1985 ) Board of Education of Kiryas Joel Village School District v. Grumet ( 1994 ) Agostini v. Felton ( 1997 ) Mitchell v. Helms ( 2000 ) Zelman v. Simmons - Harris ( 2002 ) Locke v. Davey ( 2004 ) Arizona Christian School Tuition Organization v. Winn ( 2011 ) Public displays Stone v. Graham ( 1980 ) Lynch v. Donnelly ( 1984 ) Board of Trustees of Scarsdale v. McCreary ( 1985 ) County of Allegheny v. ACLU ( 1989 ) McCreary County v. ACLU of Kentucky ( 2005 ) Van Orden v. Perry ( 2005 ) Pleasant Grove City v. Summum ( 2009 ) School prayer Zorach v. Clauson ( 1952 ) Engel v. Vitale ( 1962 ) Abington School District v. Schempp ( 1963 ) Stone v. Graham ( 1980 ) Wallace v. Jaffree ( 1985 ) Lee v. Weisman ( 1992 ) Santa Fe Independent School District v. Doe ( 2000 ) Elk Grove Unified School District v. Newdow ( 2004 ) Creationism Epperson v. Arkansas ( 1968 ) Edwards v. Aguillard ( 1987 ) Kitzmiller v. Dover Area School District ( M.D. Pa. 2005 ) Legislature prayer Marsh v. Chambers ( 1983 ) Town of Greece v. Galloway ( 2014 ) Other McGowan v. Maryland ( 1961 ) Walz v. Tax Commission of the City of New York ( 1970 ) McDaniel v. Paty ( 1978 ) Estate of Thornton v. Caldor, Inc. ( 1985 ) Texas Monthly, Inc. v. Bullock ( 1989 ) Hosanna - Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission ( 2012 ) Free Exercise Clause Reynolds v. United States ( 1879 ) Davis v. Beason ( 1890 ) Schneider v. New Jersey ( 1939 ) Cantwell v. Connecticut ( 1940 ) Minersville School District v. Gobitis ( 1940 ) Murdock v. Pennsylvania ( 1943 ) United States v. Ballard ( 1944 ) Braunfeld v. Brown ( 1961 ) Torcaso v. Watkins ( 1961 ) Sherbert v. Verner ( 1963 ) Presbyterian Church v. Hull Church ( 1969 ) Wisconsin v. Yoder ( 1972 ) Harris v. McRae ( 1980 ) Thomas v. Review Board of the Indiana Employment Security Division ( 1981 ) United States v. Lee ( 1982 ) Bob Jones University v. United States ( 1983 ) Bowen v. Roy ( 1986 ) Goldman v. Weinberger ( 1986 ) Employment Division v. Smith ( 1990 ) Church of Lukumi Babalu Aye v. City of Hialeah ( 1993 ) City of Boerne v. Flores ( 1997 ) Watchtower Society v. Village of Stratton ( 2002 ) Cutter v. Wilkinson ( 2005 ) Gonzales v. UDV ( 2006 ) Trinity Lutheran Church of Columbia, Inc. v. Comer ( 2017 ) Masterpiece Cakeshop v. Colorado Civil Rights Commission ( under consideration ) Freedom of speech ( portal ) Sedition and imminent danger Alien and Sedition Acts ( 1798 ) Masses Publishing Co. v. Patten ( S.D.N.Y. 1917 ) Schenck v. United States ( 1919 ) Abrams v. United States ( 1919 ) Gitlow v. New York ( 1925 ) Whitney v. California ( 1927 ) Dennis v. United States ( 1951 ) Communist Party v. Subversive Activities Control Board ( 1955, 1961 ) Yates v. United States ( 1957 ) Bond v. Floyd ( 1966 ) Brandenburg v. Ohio ( 1969 ) Hess v. Indiana ( 1973 ) False speech Gertz v. Robert Welch, Inc. ( 1974 ) United States v. Alvarez ( 2012 ) Fighting words and the heckler 's veto Cantwell v. Connecticut ( 1940 ) Chaplinsky v. New Hampshire ( 1942 ) Terminiello v. Chicago ( 1949 ) Feiner v. New York ( 1951 ) Gregory v. Chicago ( 1969 ) National Socialist Party of America v. Village of Skokie ( 1977 ) R.A.V. v. City of St. Paul ( 1992 ) Snyder v. Phelps ( 2011 ) Elonis v. United States ( 2015 ) Freedom of assembly and public forums Hague v. CIO ( 1939 ) Schneider v. New Jersey ( 1939 ) Thornhill v. Alabama ( 1940 ) Martin v. City of Struthers ( 1943 ) Marsh v. Alabama ( 1946 ) Niemotko v. Maryland ( 1951 ) Edwards v. South Carolina ( 1963 ) Cox v. Louisiana ( 1965 ) Brown v. Louisiana ( 1966 ) Adderley v. Florida ( 1966 ) Carroll v. Town of Princess Anne ( 1968 ) Coates v. Cincinnati ( 1971 ) Organization for a Better Austin v. Keefe ( 1971 ) Lloyd Corp. v. Tanner ( 1972 ) Pruneyard Shopping Center v. Robins ( 1980 ) Widmar v. Vincent ( 1981 ) Hill v. Colorado ( 2000 ) McCullen v. Coakley ( 2014 ) Packingham v. North Carolina ( 2017 ) Symbolic speech Stromberg v. California ( 1931 ) United States v. O'Brien ( 1968 ) Cohen v. California ( 1971 ) Smith v. Goguen ( 1974 ) Texas v. Johnson ( 1989 ) United States v. Eichman ( 1990 ) Virginia v. Black ( 2003 ) Compelled speech Minersville School District v. Gobitis ( 1940 ) West Virginia State Board of Education v. Barnette ( 1943 ) Wooley v. Maynard ( 1977 ) Board of Regents of the University of Wisconsin System v. Southworth ( 2000 ) Davenport v. Washington Education Association ( 2007 ) Knox v. Service Employees International Union, Local 1000 ( 2012 ) Agency for International Development v. Alliance for Open Society International, Inc. ( 2013 ) Masterpiece Cakeshop v. Colorado Civil Rights Commission ( under consideration ) Loyalty oaths American Communications Association v. Douds ( 1950 ) Garner v. Board of Public Works ( 1951 ) Speiser v. Randall ( 1958 ) Keyishian v. Board of Regents ( 1967 ) Communist Party of Indiana v. Whitcomb ( 1974 ) School speech Minersville School District v. Gobitis ( 1940 ) West Virginia State Board of Education v. Barnette ( 1943 ) Tinker v. Des Moines Independent Community School District ( 1969 ) Island Trees School District v. Pico ( 1982 ) Bethel School District v. Fraser ( 1986 ) Hazelwood School District v. Kuhlmeier ( 1988 ) Rosenberger v. University of Virginia ( 1995 ) Morse v. Frederick ( 2007 ) Obscenity Rosen v. United States ( 1896 ) United States v. One Book Called Ulysses ( S.D.N.Y. 1933 ) Roth v. United States ( 1957 ) One, Inc. v. Olesen ( 1958 ) Marcus v. Search Warrant ( 1961 ) MANual Enterprises v. Day ( 1962 ) Jacobellis v. Ohio ( 1964 ) Quantity of Books v. Kansas ( 1964 ) Freedman v. Maryland ( 1965 ) Ginzburg v. United States ( 1966 ) Memoirs v. Massachusetts ( 1966 ) Redrup v. New York ( 1967 ) Ginsberg v. New York ( 1968 ) Stanley v. Georgia ( 1969 ) Cohen v. California ( 1971 ) United States v. Thirty - seven Photographs ( 1971 ) Kois v. Wisconsin ( 1972 ) Miller v. California ( 1973 ) Paris Adult Theatre I v. Slaton ( 1973 ) United States v. 12 200 - ft. Reels of Film ( 1973 ) Jenkins v. Georgia ( 1974 ) Erznoznik v. City of Jacksonville ( 1975 ) Young v. American Mini Theatres ( 1976 ) New York v. Ferber ( 1982 ) American Booksellers v. Hudnut ( 7th Cir., 1985 ) Renton v. Playtime Theatres, Inc. ( 1986 ) Osborne v. Ohio ( 1990 ) United States v. X-Citement Video ( 1994 ) Reno v. American Civil Liberties Union ( 1997 ) United States v. Playboy Entertainment Group ( 2000 ) Ashcroft v. Free Speech Coalition ( 2002 ) Ashcroft v. American Civil Liberties Union ( 2002 ) Nitke v. Gonzales ( S.D.N.Y., 2005 ) United States v. Williams ( 2008 ) FCC v. Fox Televisions Stations - 2 cases ( 2009 and 2012 ) American Booksellers Foundation for Free Expression v. Strickland ( 6th Cir., 2009 ) United States v. Kilbride ( 9th Cir., 2009 ) United States v. Stevens ( 2010 ) Brown v. Entertainment Merchants Association ( 2011 ) Public employees Pickering v. Board of Education ( 1968 ) Perry v. Sindermann ( 1972 ) Board of Regents of State Colleges v. Roth ( 1972 ) Mt. Healthy City School District Board of Education v. Doyle ( 1977 ) Givhan v. Western Line Consolidated School District ( 1979 ) Connick v. Myers ( 1983 ) Rankin v. McPherson ( 1987 ) Waters v. Churchill ( 1994 ) Garcetti v. Ceballos ( 2006 ) Borough of Duryea v. Guarnieri ( 2011 ) Heffernan v. City of Paterson ( 2016 ) Hatch Act and similar laws Ex parte Curtis ( 1882 ) United Public Workers v. Mitchell ( 1947 ) United States Civil Service Commission v. National Association of Letter Carriers ( 1973 ) Broadrick v. Oklahoma ( 1973 ) Licensing and restriction of speech Mutual Film Corporation v. Industrial Commission of Ohio ( 1915 ) Joseph Burstyn, Inc. v. Wilson ( 1952 ) Freedman v. Maryland ( 1965 ) Virginia State Pharmacy Board v. Virginia Citizens Consumer Council ( 1976 ) Hoffman Estates v. The Flipside, Hoffman Estates, Inc. ( 1982 ) Walker v. Texas Division, Sons of Confederate Veterans ( 2015 ) Matal v. Tam ( 2017 ) Commercial speech Valentine v. Chrestensen ( 1942 ) Rowan v. U.S. Post Office Dept. ( 1970 ) Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations ( 1973 ) Bigelow v. Commonwealth of Virginia ( 1974 ) Virginia State Pharmacy Board v. Virginia Citizens Consumer Council ( 1976 ) Bates v. State Bar of Arizona ( 1977 ) Linmark Associates, Inc. v. Willingboro ( 1977 ) Central Hudson Gas & Electric Corp. v. Public Service Commission ( 1980 ) Consol. Edison Co. v. Public Serv. Comm'n ( 1980 ) Pacific Gas & Electric Co. v. Public Utilities Commission of California ( 1986 ) Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico ( 1986 ) San Francisco Arts & Athletics, Inc. v. United States Olympic Committee ( 1987 ) 44 Liquormart, Inc. v. Rhode Island ( 1996 ) Sorrell v. IMS Health Inc. ( 2011 ) Campaign finance and political speech Buckley v. Valeo ( 1976 ) First National Bank of Boston v. Bellotti ( 1978 ) Citizens Against Rent Control v. City of Berkeley ( 1981 ) Brown v. Socialist Workers ' 74 Campaign Committee ( 1982 ) Regan v. Taxation with Representation of Washington ( 1983 ) FEC v. Massachusetts Citizens for Life ( 1986 ) Austin v. Michigan Chamber of Commerce ( 1990 ) McIntyre v. Ohio Elections Commission ( 1995 ) Colorado Republican Federal Campaign Committee v. FEC ( 1996 ) Nixon v. Shrink Missouri Government PAC ( 2000 ) Republican Party of Minnesota v. White ( 2002 ) McConnell v. FEC ( 2003 ) Randall v. Sorrell ( 2006 ) FEC v. Wisconsin Right to Life, Inc. ( 2007 ) Davis v. FEC ( 2008 ) Citizens United v. FEC ( 2010 ) McComish v. Bennett ( 2011 ) American Tradition Partnership v. Bullock ( 2012 ) McCutcheon v. Federal Election Commission ( 2014 ) Williams - Yulee v. The Florida Bar ( 2015 ) Freedom of the press Prior restraints and censorship Near v. Minnesota ( 1931 ) Lovell v. City of Griffin ( 1938 ) Hannegan v. Esquire, Inc. ( 1946 ) New York Times Co. v. United States ( 1971 ) Miami Herald Publishing Co. v. Tornillo ( 1974 ) Nebraska Press Ass'n v. Stuart ( 1976 ) Landmark Communications, Inc. v. Virginia ( 1978 ) Tory v. Cochran ( 2005 ) Privacy Time, Inc. v. Hill ( 1967 ) Cox Broadcasting Corp. v. Cohn ( 1975 ) Florida Star v. B.J.F. ( 1989 ) Taxation and privileges Grosjean v. American Press Co. ( 1936 ) Branzburg v. Hayes ( 1972 ) Minneapolis Star Tribune Co. v. Commissioner ( 1983 ) Defamation Beauharnais v. Illinois ( 1952 ) New York Times Co. v. Sullivan ( 1964 ) Curtis Publishing Co. v. Butts ( 1967 ) Gertz v. Robert Welch, Inc. ( 1974 ) Time, Inc. v. Firestone ( 1976 ) Bose Corp. v. Consumers Union of United States, Inc. ( 1984 ) Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. ( 1985 ) McDonald v. Smith ( 1985 ) Hustler Magazine v. Falwell ( 1988 ) Harte - Hanks Communications v. Connaughton ( 1989 ) Milkovich v. Lorain Journal Co. ( 1990 ) Obsidian Finance Group, LLC v. Cox ( 9th Cir., 2014 ) Broadcast media Red Lion Broadcasting Co. v. FCC ( 1969 ) FCC v. Pacifica Foundation ( 1978 ) Turner Broadcasting v. FCC ( 1994 ) Bartnicki v. Vopper ( 2001 ) Copyrighted materials Zacchini v. Scripps - Howard Broadcasting Co. ( 1977 ) Harper & Row v. Nation Enterprises ( 1985 ) Freedom of association Joint Anti-Fascist Refugee Committee v. McGrath ( 1951 ) Watkins v. United States ( 1957 ) NAACP v. Alabama ( 1958 ) Baggett v. Bullitt ( 1964 ) In re Primus ( 1978 ) Roberts v. United States Jaycees ( 1984 ) Hurley v. Irish - American Gay, Lesbian, & Bisexual Group of Boston ( 1995 ) Boy Scouts of America v. Dale ( 2000 ) Retrieved from `` https://en.wikipedia.org/w/index.php?title=Commercial_speech&oldid=822793706 '' Categories : United States Free Speech Clause case law Advertising American legal terminology Talk Contents About Wikipedia Add links This page was last edited on 28 January 2018, at 14 : 59. Text is available under the Creative Commons Attribution - ShareAlike License ; additional terms may apply. By using this site, you agree to the Terms of Use and Privacy Policy. 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Question: which supreme court case forms the basis for commercial speech protection today
Answer: Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976)