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Prior Restraints: Commercial speech

Advertising and other communications proposing commercial transactions between the speaker and listener are not fully protected by the First Amendment. The Supreme Court has said that commercial speech may be restrained if it is false, misleading or advertises unlawful activity. Any governmental restraint must advance a substantial public interest and must not be more extensive than necessary to serve that interest.²⁸

In 1996, the Supreme Court struck down a 1956 Rhode Island law that banned the advertisement of retail liquor prices, holding that the state's interest in discouraging alcohol consumption did not justify the broad restriction on truthful commercial speech. In the decision, the Supreme Court not only agreed that commercial speech merited substantial First Amendment protection, it enhanced that protection. According to the high court, blanket bans on commercial speech that deprive the public of accurate price information must be reviewed with "special care" and "rarely survive constitutional review." The court also stated that unless commercial speech regulations target false, misleading or coercive advertising, or require disclosure of information that will help avoid misleading advertising, strict First Amendment scrutiny should apply.²⁹

Notes

28. See, e.g., Central Hudson v. Public Serv. Comm'n, 447 U.S. 557 (1980); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).

29. 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996).

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