View source for Commercial speech

{{Short description|Speech on behalf of a business}}
In [[law]], '''commercial speech''' is [[Public speaking|speech]] or [[writing]]  on behalf of a business with the intent of earning revenue or a [[profit (economics)|profit]]. It is [[economics|economic]] in nature and usually attempts to persuade [[consumer]]s 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".<ref>{{cite court |litigants=Central Hudson Gas & Elec. v. Public Svc. Comm'n |vol=447 |reporter=U.S. |opinion=557 |pinpoint=562 |date=1980 |url=https://scholar.google.com/scholar_case?case=1962482840967580827 |access-date=2017-10-05}}</ref>

== 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".<ref name="case">{{cite journal|last1=Morrison|first1=Alan B.|title=How We Got the Commercial Speech Doctrine: An Originalist's Recollections|journal=Case Western Reserve Law Review|date=2004|volume=54|issue=4|page=1189|url=https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1558&context=caselrev|access-date=26 January 2018}}</ref> 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:<ref>{{cite journal|last1=Troy|first1=Daniel|title=Taking Commercial Speech Seriously|url=https://fedsoc.org/commentary/publications/taking-commercial-speech-seriously|access-date=26 January 2018|journal=Free Speech & Election Law Practice Group Newsletter|publisher=The Federalist Society|volume = 2|issue=1 |date=Spring 1998}}</ref>
# 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 to the United States Constitution|First Amendment]] protection.<ref name="costello">{{cite journal|last1=Costello|first1=Sean P.|title=Strange Brew: The State of Commercial Speech Jurisprudence before and after 44 Liquormart, Inc. v. Rhode Island|journal=Case Western Reserve Law Review|date=1997|volume=47|issue=2|page=681|url=http://scholarlycommons.law.case.edu/caselrev/vol47/iss2/17}}</ref> Indeed, the term "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.<ref name="thomson">{{cite news|title=Today in 1942: SCOTUS Rules That the First Amendment Doesn't Protect Commercial Speech|url=http://blog.legalsolutions.thomsonreuters.com/legal-research/today-in-1942-scotus-rules-that-the-first-amendment-doesnt-protect-commercial-speech/|access-date=26 January 2018|work=Legal Research Blog|publisher=Thomson Reuters|date=13 April 2012}}</ref> This precedent was overturned in ''[[Bigelow v. Virginia]]'' (1975), in which the Supreme Court held that advertisements are acts of speech that qualify for First Amendment protection.<ref name=":1">''Bigelow v. Virginia'', [https://scholar.google.com/scholar_case?case=4759538477634429547&q=421+U.S.+809+&hl=en&as_sdt=6,39 421 U.S. 809] (S. Ct., 1975).</ref> The commercial speech doctrine, outlining acceptable and unacceptable government restrictions on ads based on topic or product category, was formulated by the Supreme Court in the 1976 ''Virginia State Pharmacy Board'' ruling.<ref>{{Citation|title=Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976)|date=2015-04-10|url=http://dx.doi.org/10.4324/9781315699868-714|encyclopedia=The Encyclopedia of Civil Liberties in America|pages=1003–1004|publisher=Routledge|doi=10.4324/9781315699868-714|isbn=9781315699868|access-date=2021-12-03|url-access=subscription}}</ref>  Justice [[Harry Blackmun]] noted that while he believed while commercial speech should receive First Amendment protection, it should also still be regulated.<ref>{{Citation|title=Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976)|date=2015-04-10|url=http://dx.doi.org/10.4324/9781315699868-714|encyclopedia=The Encyclopedia of Civil Liberties in America|pages=1003–1004|publisher=Routledge|doi=10.4324/9781315699868-714|isbn=9781315699868|access-date=2021-12-03|url-access=subscription}}</ref> 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 would be enhanced with a new test for analyzing government restrictions in the 1980 ''[[Central Hudson Gas & Electric Corp. v. Public Service Commission|Central Hudson]]'' ruling (1980).<ref name="case"/>

The Supreme 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.<ref name="lori" /> The Court has set forth a framework under ''Central Hudson'' for analyzing commercial speech under [[intermediate scrutiny]]:{{blockquote|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.<ref>{{cite court |litigants=Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of NY |vol=447 |reporter=U.S. |opinion=557 |pinpoint=566 |date=1980 |url=https://scholar.google.com/scholar_case?case=1962482840967580827 |access-date=2017-10-05}}</ref>}}

Whereas ''Central Hudson'' limits what commercial speech can be said, U.S. courts have addressed the related matter of [[Compelled speech|compelled]] commercial speech in the form of government-mandated disclaimers or other information required to be included in some forms of commercial speech. This concept was established as constitutional in ''[[Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio]]'' (1985), which  found that the government can mandate commercial speech to include "purely factual and uncontroversial information" when it is reasonably related to the government's interest and "to dissipate the possibility of consumer confusion or deception". The Zauderer standard has since been expanded within Circuit Court case law to extend beyond protecting consumer deception as to include factual information for consumer awareness, such as food packaging information, as long as the information serves a reasonable government interest.<ref>{{cite journal | url = https://harvardlawreview.org/2017/01/repackaging-zauderer/ | title = Repackaging Zauderer | journal = [[Harvard Law Review]] |date = January 5, 2017 | access-date = June 29, 2018 | volume = 130 | pages = 972 }}</ref>

"FDA views published articles as protected commercial speech so doesn't regulate their content".<ref>Balter W, Skelton M, Safir PO. The P's and Q's of publication planning. Pharm Executive May. 2003:130–6.</ref>

=== 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.<ref name = "lori">{{cite court |litigants=Lorillard Tobacco Co. v. Reilly |vol=533 |reporter=U.S. |opinion=525 |pinpoint=572 |date=2001 |url=https://scholar.google.com/scholar_case?case=5243407339487774276 |access-date=2017-10-05}}</ref> 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".<ref>{{cite court |litigants=44 Liquormart, Inc. v. Rhode Island |vol=517 |reporter=U.S. |opinion=484 |pinpoint=517 |date=1996 |url=https://scholar.google.com/scholar_case?case=6419397677628273380 |access-date=2017-10-05}}</ref> 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".<ref>{{cite journal |last1=Kozinski |first1=Alex |last2=Banner |first2=Stuart |date=May 1990 |title=Who's Afraid of Commercial Speech? |jstor=1073208 |journal=Virginia Law Review |volume=76 |issue=4 |pages=627–653 |doi=10.2307/1073208 }}</ref>

==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|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 [[Law of the United States|U.S. law]].<ref name="joanna">{{cite journal|last1=Krzeminska-Vamvaka|first1=Joanna|title=Freedom of Commercial Speech in Europe|journal=Verlag Dr Kovac, Studien zum Völker- und Europarecht|date=2008 |volume=58|page=292| doi= 10.2139/ssrn.1443922 |ssrn= 1443922}}</ref>

In [[Germany]], the courts adopted a strict approach to advertising and commercial speech due to its emphasis on ensuring [[Competition law|competition]]. For example, in ''Barthold v. Germany'' (1985), the [[European Court of Human Rights]] held that enjoining a [[Veterinary surgery|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.<ref name="columbia">{{cite web|title=Barthold v. Germany|url=https://globalfreedomofexpression.columbia.edu/cases/barthold-v-germany/|website=Columbia Global Freedom of Expression|publisher=Columbia University|access-date=26 January 2018}}</ref>

The 1990 case of Markt Intern Verlag GmbH and Klaus Beermann v. Germany is often cited as a significant case in European law regarding freedom of speech in a commercial context. [[European Court of Human Rights|The European Court of Human Rights]] (ECHR) ruled in this case, concluding that the German [[Federal court of justice of germany|Federal Court of Justice's]] decision to prohibit a publishing company from repeating certain statements about another company's practices did not violate Article 10 of the European Convention on Human Rights. These statements had previously been published in a specialist information bulletin. The ECHR noted that the prohibition fell within the 'margin of appreciation' that national authorities are permitted under Article 10, §2, which allows for certain formalities, conditions, restrictions, or penalties to be imposed on the exercise of freedom of expression.<ref name="coe">{{cite book|last1=Council of Europe|title=Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights|date=March 2007|publisher=Council of Europe Publishing|location=Strasbourg|isbn=978-92-871-6087-4|page=79|url=http://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-18(2007).pdf|access-date=26 January 2018}}</ref>

== In South Africa ==
{{Main article|Freedom of expression in South Africa#Commercial speech}}

== See also ==
* [[First Amendment to the United States Constitution]]
* [[Freedom of speech]]
* ''[[Central Hudson Gas & Electric Corp. v. Public Service Commission]]''
* ''[[Bigelow v. Virginia]]''
* ''[[Valentine v. Chrestensen]]''

== References ==
{{reflist}}

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== Further reading ==
* Stephen M. Worth, "'Do Not Call' Laws and the First Amendment: Testing the Limits of Commercial Free Speech Protection", ''J. Small & Emerging Bus''. 2003
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{{US1stAmendment Freedom of Speech Clause Supreme Court case law|state=collapsed}}

[[Category:Advertising regulation|*]]
[[Category:Commercial speech| ]]
[[Category:American legal terminology]]