Commercial Speech

Commercial speech, such as advertising, receives more First Amendment protection than subversive advocacy, fighting words, and obscenity, but less protection than core political speech. Advertising is afforded more protection than these other categories of expression because of consumers’ interest in the free flow of market information. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed.2d 346 (1976). In a free enterprise system, consumers depend on information regarding the quality, quantity, and price of various goods and services. Society is not similarly served, for instance, by the free exchange of obscenity.

At the same time, commercial speech deserves less protection than core political speech because society has a greater interest in receiving accurate commercial information and may be less savvy in flushing out false and deceptive ads. The average citizen is more conditioned, the Supreme Court has suggested, to discount the words of a politician than the words of a Fortune 500 company. The average citizen may also be more vulnerable to misleading commercial advertising. Even during an election year, most people view more commercial advertisements than political and rely on those advertisements when purchasing the clothes they wear, the food they eat, and the automobiles they drive. Thus, the First Amendment permits governmental regulation of commercial speech so long as the government’s interest in doing so is substantial (e.g., the prohibition of false, deceptive, and misleading advertisements), the regulations directly advance the government’s asserted interest, and the regulations are no more extensive than necessary to serve that interest.

Inside Commercial Speech