Commercial speech is entitled to greater protection than that accorded by the majority under both the First Amendment to the United States Constitution and Article 1, Section 7 of the Pennsylvania Constitution. A statutory limitation on commercial speech can be upheld only if the challenged statute directly advances a substantial governmental interest in a way that is no more restrictive than necessary to achieve the objective. Here, the governmental interest cited is ostensibly to protect the public from being misled that chiropractors and physical therapists render the same services. Thus, because appellants are certified to provide the services which they advertised, and because they did not hold themselves out as physical therapists, but rather clearly identified themselves as chiropractors, no substantial government interest exists to support the statutory ban on advertising by chiropractors providing physical therapy services. However, when a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands.
Sound reasons justify reviewing the latter type of commercial speech regulation more carefully.
Most obviously, complete speech bans, unlike content-neutral restrictions on time, place or manner of expression, are particularly dangerous because they all but foreclose alternative means of disseminating certain information. The Physical Therapy Act ban on advertising of physical therapy services by anyone other than a licensed physical therapist is precisely the type of ban contemplated by the United States Supreme Court in 44 Liquormart . It effectively prevents chiropractors from advertising certain services that they are certified to provide simply because they are not licensed under the Physical Therapy Act. Because appellants' are certified to perform the advertised services, it defies logic that their advertisements could be considered misleading. This is a clear violation of appellants' free speech rights that is not justified by any governmental interest in the protection of consumers.