With regard to the restrictions imposed by the First Amendment on government conduct, Eng does not cite any precedent in which the NASD was deemed to be a government entity for purposes of this Amendment, and we have found none. Moreover, even if the NASD's enforcement of Conduct Rule 2210 were deemed to be state action, that action did not abridge Eng's First Amendment rights. The speech at issue here falls within the definition of commercial speech because it is speech that is designed to encourage a commercial transaction. The subject of Eng's Rules is advice and tips for investing in the stock market. He identified himself on the GlobalForum site as a stockbroker and linked this page to LSI's Internet page.
Commercial speech is accorded less protection than other constitutionally-protected speech.
In order to restrict commercial speech, the government is required to show that it has a substantial interest and that its restriction is carefully designed to achieve this interest, i.e. it is the most reasonably limited restriction available to achieve the government's interest. 5 Commercial speech that is misleading or related to illegal activity can be banned. 6 Conduct Rule 2210 is directed at speech that misleads by, among other things, giving a promise of a specific result for which there is no reasonable basis. Thus, even if the NASD were deemed to be a state actor, the enforcement of Conduct Rule 2210 would not violate its members' First Amendment rights. Eng argues that he should not be subject to any sanctions for his conduct.