Commercial Speech Doctrine Research Articles

The Influence of the Commercial Speech Doctrine on the Development of Tobacco Control Measures

Among the attempts to oppose tobacco control legislation, the tobacco industry has alleged violations of its right to commercial speech. While the disputes that took place in some jurisdictions like the United States (US), Canada, or the European Union (EU) have been already analyzed, much less is known about how, globally, this doctrine has influenced the adoption of tobacco control measures. This article contributes to filling this gap by illustrating how the commercial speech doctrine influenced the negotiations of the Framework Convention on Tobacco Control (FCTC). Moreover, using the Tobacco Control Database of Campaign for Tobacco-Free Kids, it shows that arguments on commercial speech have been used to challenge tobacco control measures in an increasing number of countries.

United States: Protecting Commercial Speech under the First Amendment.

The First Amendment to the US Constitution protects commercial speech from government interference. Commercial speech has been defined by the US Supreme Court as speech that proposes a commercial transaction, such as marketing and labeling. Companies that produce products associated with public health harms, such as alcohol, tobacco, and food, thus have a constitutional right to market these products to consumers. This article will examine the evolution of US law related to the protection of commercial speech, often at the expense of public health. It will then identify outstanding questions related to the commercial speech doctrine and the few remaining avenues available in the United States to regulate commercial speech including the use of government speech and addressing deceptive and misleading commercial speech.

The Fourth's Estate

The news industry in the United States faces a funding crisis because the tech giants, particularly Google and Facebook, have acceded to the advertising monopolies once enjoyed by the newspaper industry itself. Despite the best efforts of the news industry to paint the tech giants as rapacious monopolists, however, these big firms won by offering better services to users and better advertising opportunities to advertisers, so breakup is not appropriate, and is unlikely to restore the news industry’s profits anyway, because search and social media will remain better ad distribution channels than the news. A better solution to the funding crisis would be for government to divide the advertising distribution market, reallocating to the news industry some of the ad impressions taken from it by the tech giants. This indirect, property-rights-based approach to government subsidization would address concerns, however misguided, that direct subsidization a la the BBC might lead to political interference in newsgathering. An important collateral benefit would be the opportunity to limit the total amount of advertising consumed by the economy, by licensing fewer total ad impressions than are currently consumed. This would lead to an efficiency gain because advertising’s information function has withered in the information age, making advertising almost entirely manipulative in character, and therefore a threat to consumer sovereignty. Ad distribution revenues would not fall, however, because advertising cancels—firms advertise because others advertise, not because advertising increases sales—and so firms will bid up prices in proportion to the decline in available impressions. The proposed division and reduction of the advertising market would be constitutional because the purpose of First Amendment commercial speech doctrine is to protect consumer sovereignty, and restrictions on advertising that has become almost entirely manipulative in the information age do that.

O'Connor's Canons: the Professional Responsibility Jurisprudence of Justice Sandra Day O'Connor

Justice Sandra Day O’Connor came to the Supreme Court at a time of tremendous change in the legal profession. With the development of commercial free speech doctrine, lawyers were permitted to advertise their services. Justice O’Connor vigorously opposed this development because of the potential legal advertising had for damaging the ethical standards of the profession. She believed that lawyers, because of their privileged position in society, had a higher moral duty to society as officers of the court. Moreover, she asserted that ethical standards should be established at the state level and the Court should defer to the states in this regard. Justice O’Connor wrapped her professional ideals around the belief that our majestic law steeped in traditions of freedom, democracy and liberty was to be maintained by lawyers with the highest commitment to professional duty and a willingness to sub serve their own financial and personal interests to the needs of the clients. This article will consider the constitutional jurisprudence of Justice Sandra Day O’Connor in the arena of professional responsibility with a focus on how she expressed her ethical canons in light of First Amendment Doctrine as applied to commercial free speech. Her views are immensely relevant to current discourse on professionalism.

Application Problems Of Commercial Speech Doctrine In CIS Countries: On The Example Of Russia And Uzbekistan

This article analyzes the application of the Commercial Speech Doctrine in CIS countries such as Russian and Uzbekistan. The article shows that the commercial speech doctrine was implemented as a constitutional principle of information freedom; however Federal Advertising law of Russia gives priority to the public health rather than commercial speech protection. The article concludes that, in CIS countries, especially in Uzbekistan and Russia, the government interest to control commercial information flow has become superior to that of competitor and consumer interests. The presence of strict legal standards in those countries causes unreasonable government interference in free commercial speech of advertisers and restricts the flow of commercial information. Therefore, they are unnecessary and excessive to proper regulation of misleading advertising. Hence, the main principle of the commercial speech doctrine on the limitation of government intervention does not work in practice.

There and Back: Vindicating the Listener’s Interests in Targeted Advertising in the Internet Information Economy

This Note argues first, that the Commercial Speech Doctrine as currently conceived is an ill-fitting tool for resolving difficult free speech questions in the context of data, privacy, and the modern Internet Information Economy. The application of the Commercial Speech Doctrine to a particular economic interaction should not be a nigh-complete bar to the regulation of Internet platforms that profit from data collection and transmission. For this reason, qualified constitutional protection appropriately accounts for the speaker’s interests while not short-changing those of the listener/consumer. This Note proposes that regulators and reviewing tribunals consider the context surrounding the data collection and transmission process, including: method of collection, relationship between miner and mined party, and whether the user has consented to such collection in justifying the relative need for regulation. Second, in order to vindicate the Commercial Speech Doctrine’s initial purposes, more transparency of data collection procedures for use in targeted advertising is warranted and indeed possible as a regulatory hook to protect consumers, despite the Court’s move towards according more protection to commercial speakers. In so doing, this Note builds upon Erin Bernstein and Theresa J. Lee’s Where the Consumer Is the Commodity: The Difficulty with the Current Definition of Commercial Speech, which proposes that the “rise of new non-linear commercial transactions” necessitates a shift in the definition of commercial speech to accommodate the seismic change in the modern online economy. The stakes are not inconsequential: failure to expand the scope of commercial speech would foreclose the use of many tools in a legislature’s arsenal to address current concerns related to consumer privacy and eliminating advertisements that seek to capitalize on discriminatory indicia, among other salient policy issues. Part I details the Court’s jurisprudence regarding both personal solicitations and data practices and considers the shift away from a bifurcated speech paradigm that treats commercial speech as speech of “lesser value.” Part II illustrates the most common forms of data collection and transmission. Part III locates these methods of data collection and transmission within the current commercial speech framework to conclude that qualified constitutional protection is the coherent tier of scrutiny that should apply. Part IV proposes policy recommendations that fit within the Court’s current approach to commercial speech and alternatives that would require a departure from the present doctrine.

Direct-to-Consumer Ads Are Misleading: Concise Statements of Effectiveness Should Be Required

Direct-to-consumer (DTC) advertising of prescription pharmaceuticals has been the subject of much criticism and the issue has become even more pressing with the Trump administration’s proposal to require the disclosure of prices in DTC ads. In this article I argue that a more powerful approach to the problem of DTC ads would require the disclosure of the effectiveness of the advertised drugs, at least as found in the clinical trials submitted for FDA approval. To support the need for an effectiveness disclosure, I describe the problem of DTC ads and examine representative ads to illustrate the potential of such ads to mislead consumers about the drugs’ effectiveness. While consumers’ concern about drug pricing may be significantly skewed by their insurance coverage, every potential consumer of a drug has a strong interest in the extent to which the drug is likely to provide them with a significant improvement in their health. I conclude that because the ads are likely to be misleading, required disclosures of a drug’s demonstrated level of effectiveness would be constitutional under the commercial free speech doctrine established in Central Hudson and that the FDA can require such disclosures without the need for additional legislation.

Rethinking the Right of Publicity in the Context of Social Media

This paper, inspired by a tweet by Chevy (the maker of Corvette) after Prince's death in 2016, explores whether current case law on the right of publicity provides helpful guidance for corporate speakers when the refers to a person. In particular, the article looks at the relationship between commercial use of a person's name or likeness and the commercial speech doctrine; evaluates the ways corporations speak via social media; and suggests ways to think about corporate social media messages to protection that otherwise would be protected by the First Amendment.

There and Back Again: A Vindication of the Listener's Interests in Regulating Targeted Advertising in the Internet Information Economy

Targeted advertising - the process by which advertisers direct their messaging at a specific demographic - is neither a recent nor irrational phenomenon. However, the growth of consumer dependence on new and social media platforms has led to consumer concerns regarding data privacy. This Note considers the feasibility of regulating targeted advertising used in data-for-service Internet platforms, such as Facebook, given restraints posed by the Commercial Speech Doctrine of the First Amendment and the Supreme Court’s treatment of data collection and transmission practices, most recently in Sorrell v. IMS Health. This Note argues for a return to first principles of the Commercial Speech Doctrine, which prioritizes the interests of the listener, and proposes several policies on how to best regulate a nascent area of technology.

Ending the Pursuit: Releasing Attorney Advertising Regulations at the Intersection of Technology and the First Amendment

In 2012, I characterized the enactment and enforcement of contemporary attorney advertising regulations as an endless pursuit to capture technology at the intersection of attorney advertising and the First Amendment. I invoked the image of Wile E. Coyote and his ongoing pursuit of the evasive Road Runner. Four years later, I have concluded that the pursuit is indeed endless and the “chase” should be abandoned in deference to both the First Amendment and the public’s ability to identify the proverbial wheat from the chaff in the world of Internet driven advertising. While professionalism remains a concern, the courts have found that professionalism concerns alone are not sufficient to chill commercial speech. In lieu of a detailed set of professional conduct advertising rules, state bars should apply a general standard that prohibits advertising that is misleading or fraudulent. Most states and the American Bar Association Model Rules of Professional Conduct provide such a standard in Rule 8.4(c), which states that [i]t is professional misconduct for a lawyer to…engage in conduct involving dishonesty, fraud, deceit or misrepresentation. The 8.4(c) standard should enable the state bars to protect the public while simultaneously permitting attorneys the flexibility required to advertise in the digital age.This article explores the premise that state regulation that governs attorney advertising by employing a standard that prohibits false and misleading advertising is the fair, efficient, and logical approach to advertising in the digital age. The article first provides a brief history of attorney advertising from the nineteenth century to the seminal Bates decision through today. Next, the article reviews a few of the recent court decisions and state bar ethics opinions that attempt to apply detailed advertising rules and guidelines to constantly changing technology. Then, the article reviews the tenor of the current national debate about attorney advertising and the Association of Professional Responsibility Lawyers (APRL) recent proposals to reform the advertising rules. Finally, the article concludes that streamlining the regulation of attorney advertising to require honest advertising that does not mislead the public is an approach that both adheres to the commercial speech doctrine and provides the public with access to information about legal service.

Blackhorse: A Trojan Horse for Trademark Restrictions?

This paper explores the limits of the commercial speech doctrine and applies it to the controversy over the Washington Redskins team name. It advocates that a trademark is a time-manner-place restriction on speech and deserves intermediate scrutiny protection, rather than rational basis or strict scrutiny protection. It then argues that, under this doctrine, revocation of the team's trademarks is unconstitutional.

First Amendment Speculation and Conjecture

Given the facial differences between commercial and noncommercial speech analysis, conventional wisdom suggests noncommercial speakers receive more protection than commercial speakers. The conventional wisdom is correct to some extent; federal regulators impose an extensive and complex set of rules on commercial advertising that have no analogs for noncommercial speech. However, a careful comparison shows that once the U.S. Supreme Court is asked to scrutinize speech regulations, the commercial speech doctrine's relatively weaker rhetoric comes with stronger de facto scrutiny. Once commercial speech was afforded First Amendment protection the Court steadily began to develop two separate, distinct analytical frameworks between commercial and noncommercial speech. While using these separate frameworks, the Court counter-intuitively (and not altogether consciously) subjects government interests asserted in commercial speech cases to a higher burden. Meanwhile, outside core political speech, the Court has continued to permit speculation to serve as a basis for the censorship of noncommercial speakers. This essay offers a modest proposal: the “no speculation” rule established for commercial speech precluding governmental regulations based on speculation and conjecture should apply with equal force to noncommercial speech. Part I will trace the development of the no speculation or conjecture limitation in the commercial speech doctrine. Part II demonstrates that the Court has avoided using the probing “no speculation” rule in noncommercial speech cases, allowing the government to regulate noncommercial actors based on speculative and untested assumptions. Part III outlines the theory of the no speculation or conjecture test and explores the implications of equally applying the no speculation or conjecture test to all free speech claims.

Clarifying Standards for Compelled Commercial Speech

This article identifies and analyzes unsettled areas in compelled commercial speech doctrine, especially those critical to identifying the appropriate level of scrutiny to be applied to mandated warnings and disclosures. Looking back to the original purpose of the commercial speech doctrine, this article suggests that communities should have considerable flexibility to mandate warnings geared towards protecting the public’s health. Mandated warnings may not always be the most effective policy option, but as a matter of First Amendment doctrine, communities should be given broad leeway to decide whether and how to use warnings in order to better inform the public about potential dangers. Part I provides the factual and legal background necessary to explore this issue. After briefly discussing the use of mandated warnings and disclosures as public health tools, it reviews the Zauderer test, which is the prevailing standard for analyzing compelled commercial speech under the First Amendment. It then discusses the 2012 D.C. Circuit Court of Appeals opinion striking down graphic health warnings for cigarette packs and advertisements, which exemplifies the courts’ increasingly aggressive review of compelled commercial speech requirements. Part II identifies some of the core doctrinal questions in need of clarification. It also considers how these questions might best be resolved, keeping in mind the government’s interest in promoting and protecting public health. Finally, Part III concludes the article by discussing a pending legal challenge to San Francisco's warnings for sugar-sweetened beverage advertisements.

Compelled Commercial Speech

This paper is the text of the fourth annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at the West Virginia University College of Law, which will be delivered in November and subsequently published in the West Virginia Law Review. The article explores the burgeoning doctrine of “compelled commercial speech,” with special emphasis on recent decisions of the United States Court of Appeals for District of Columbia Circuit, including American Meat Institute (“AMI”) v. Department of Agriculture, an en banc decision upholding the mandated labeling of meat products; National Association of Manufacturers (“NAM”) v. SEC, which struck down features of SEC mandated reports about the origins of conflict minerals; and R.J. Reynolds Tobacco Co. v. FDA, which invalidated FDA mandated graphic cigarette warnings. Commercial speech doctrine was established in order to protect what Central Hudson called the “informational function” of commercial communications. The object of the doctrine was explicitly to protect the capacity of an audience to receive information rather than to safeguard the autonomy of a commercial speaker. The informational function implies a constitutional asymmetry between restrictions on commercial speech and compelled disclosures of commercial speech. The former impair the distribution of information; the latter enhance it. The tendency of many judges to adjudicate compelled commercial speech cases in light of decisions like West Virginia State Board of Education v. Barnette, which defend the autonomy of speakers within public discourse, is deeply misplaced. The article defends the proposition that First Amendment jurisprudence is plural, not unitary. The Court embraced the plurality of First Amendment jurisprudence in Zauderer v. Office of Disciplinary Counsel, which holds that factual commercial speech can be compelled if it is “reasonably related” to an appropriate government purpose. First Amendment rights of commercial speakers in such circumstances are deemed to be “minimal.” The article discusses the relationship between the Zauderer test for compelled commercial speech and the Central Hudson test for restrictions on commercial speech, which is the object of much unfocused discussion in AMI. Compelled commercial speech, like government speech, is an effort to affect the content of public opinion. Both compelled commercial speech and government speech raise questions about how a democratic government may constitutionally influence the shape of a public opinion to which it is in theory responsive. The article seeks to explain certain doctrinal restrictions on compelled commercial speech in light of constitutional concerns that arise when government seeks to affect the content of public opinion. It offers an analysis of why government efforts to inform public opinion through the required disclosure of facts is constitutionally distinct from government efforts to shape public opinion through the required disclosure of opinions. The article explores how compelled disclosures of opinion may constitutionally be distinguished from compelled disclosures of fact, a distinction that lies at the heart of decisions like NAM and R.J. Reynolds. The article also discusses the kinds of state interests that may justify compelled commercial speech, which is the subject of great dispute in AMI.

Sowing Wild Oats: Online Anonymous Commercial Speech, Corporate Takeovers, and A New Commercial Speech Doctrine

The interpretation of commercial speech and determining the appropriate level of First Amendment free expression protection have always been problematic. This interpretation is made all the more difficult when such speech is offered anonymously or pseudonymously. The case of pseudonymous online comments on Yahoo’s financial bulletin by Whole Foods’ CEO John Mackey brings to the fore the ambiguity between free speech and commercial speech. Using Mackey’s online comments as a fulcrum for analysis, we discuss the current state of commercial speech and examine some appropriate responses to potentially false or self-serving commercial speech. More specifically, we provide a brief overview of First Amendment jurisprudence addressing anonymous speech and commercial speech, and then argue that a variation on the New York Times v. Sullivan standard should be used in commercial speech cases—requiring First Amendment free-speech protection only for commercial speech that addresses “important public issues.”

Why the Commercial Speech Doctrine Will Prove Toxic to the USDA National Organic Program

This Article argues that the Supreme Court has expanded commercial speech rights too far. The current Court increasingly appears to view the government's power to regulate commercial speech as limited to only proscribing false or misleading commercial speech. Any attempt by the government to restrict truthful commercial speech, even if potentially misleading, is generally treated as unjustified paternalism in violation of the First Amendment. The evolving jurisprudence threatens reasonable economic regulations that restrict speech for important and non-paternalistic reasons. To make this case, this Article explores how the evolving commercial speech doctrine could invalidate the food-labeling regime established by the Organic Foods Production Act of 1990 (OFPA) and its implementing regulations. That regulatory regime, often referred to as the National Organic Program (NOP), generally prohibits representing food as unless a United States Department of Agriculture (USDA) licensed inspector has certified that the food was produced consistent with OFPA's implementing regulations. The National Organic Program: (1) provides assurance to the consumer that the product is indeed organic; (2) sets clear standards to define the organic market so that producers can enjoy a price premium for food produced consistent with those standards; and (3) incentivizes producers, through the price premium, to convert from conventional to organic production practices, resulting in substantial environmental benefits. Although the regulations facilitate the creation and growth of an organic market with integrity, the regulations are vulnerable to a First Amendment challenge because they restrict the use of the term to a very limited set of circumstances.

Manipulative Marketing and the First Amendment

The conventional wisdom is that the Supreme Court’s review of commercial speech restrictions has gradually become more stringent over time, edging further and further in the direction of strict scrutiny. What this narrative misses is that the Supreme Court’s review has become more rigorous over time only for a certain type of commercial speech regulation: laws that restrict non-misleading, informational advertising. A majority of the Court sees this type of regulation as unwarranted — indeed offensive — governmental paternalism. However, the Court has been, and remains, far more willing to uphold regulations on commercial speech where the governmental purpose is not to keep information from consumers, but to protect consumers from manipulation.The commercial speech doctrine is fundamentally based on the premise that advertising communicates information to consumers, allowing them to make more informed choices. Increasingly, however, common advertising techniques do not rely on communicating information; instead, they use emotional and non-conscious marketing techniques to take advantage of consumers’ cognitive limitations and biases. This article argues that such non-informational marketing practices are entitled to limited, if any, protection under the First Amendment, particularly when the products or activities being promoted are harmful to public health.After reviewing the history of the commercial speech doctrine, this article explores the connection between marketing and cognitive psychology and provides several examples of “manipulative marketing.” It concludes by analyzing possible doctrinal frameworks for the regulation of harmful and manipulative marketing practices.

Snake Oil Salesmen or Purveyors of Knowledge: Off-Label Promotions and the Commercial Speech Doctrine

The Second Circuit's December 2012 decision in United States v. Caronia striking down the prohibition on off-label marketing of pharmaceutical drugs has profound implications for economic regulation in general, calling into question the constitutionality of restrictions on the offer and sale of securities under the Securities Act of 1933, the solicitation of shareholder proxies and periodic reporting under the Securities Exchange Act of 1934, mandatory labels on food, tobacco, and pesticides, and a wide range of privacy protections. In this Article we suggest that Caronia misconstrues the Supreme Court's holding in Sorrell v. IMS Health, which was motivated by concerns of favoring one industry participant over another rather than a desire to return to the anti-regulator fervor of the Lochner era. Reexamining the theoretical justification for limiting truthful commercial speech shows that a more nuanced approach to regulating off-label marketing with the purpose of promoting public health and safety would pass constitutional muster. We argue that as long as the government both has a rational basis for subjecting a particular industry to limits on commercial speech intended to further a legitimate public interest, rather than unfounded paternalism, and does not discriminate against disfavored industry participants, those limits should be subject to intermediate scrutiny under the Central Hudson standard. We believe that our articulation of the commercial speech doctrine post-Sorrell will help resolve the current split in the Circuits on the appropriate standard of review in cases involving both restrictions on commercial speech and mandated speech. Finally, we critique the FDA's 2011 Guidance for Responding to Unsolicited Requests for Off- Label Information (draft) and present a proposal for new rules for regulating the off-label marketing of pharmaceutical drugs based on transparency, the sophistication of the listener and the type of information offered, and the requirement that the pharmaceutical company comply with ongoing duties of training, monitoring, reporting, and auditing.

A Justice's Surprise That Has Stood Its Ground: The Enduring Value of the Commercial Speech Doctrine's Powellian Balance

One of the most important concepts of modern commercial speech related to advertising, characterized as the “Powellian balance,” resulted in a compromise between those who thought commercial expression should receive little or no First Amendment protection and those who argued that it receive the same expansive protection accorded to political expression. The private papers of Justice Lewis F. Powell, Jr. reveal the remarkable degree to which he maintained a deep commitment to balancing competing interests in shaping the commercial speech doctrine. The central argument of this monograph is that Powell's “middle way” can be employed to best promote today's vital and complex societal interests.

When the First Amendment and Public Health Collide: The Court's Increasingly Strict Constitutional Scrutiny of Health Regulations That Restrict Commercial Speech

In Sorrell v. IMS Health Inc., the Supreme Court departed from traditional commercial speech doctrine in striking down Vermont's Prescription Confidentiality Law under a heightened level of scrutiny. The Prescription Confidentiality Law was Vermont's attempt to prevent pharmacies from sharing information about doctors’ prescribing habits with drug manufacturers without the consent of the doctor. The law aimed to protect doctors, as well as to promote public health, by regulating speech and conduct that is arguably commercial in nature. The Court has purported to subject regulation of commercial speech to only an intermediate level of scrutiny since Virginia State Board of Pharmacy v. Virginia Citizen's Consumer Council, Inc. established that as the proper standard. Thus, it was inconsistent for the Court to categorize the commercial speech regulation in Sorrell as “content-based” and thus subject to a stricter level of review. The invalidation of the Prescription Confidentiality Law, however, is only the most recent development in the Court's strict treatment of health-related regulations infringing on commercial speech. The Court has been moving toward a more stringent level of scrutiny since first applying the commercial speech doctrine in a public health context in Rubin v. Coors.