Levine and Wermiel-hyperlinked version.docx (Do Not Delete)
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WASHINGTON LAW REVIEW
3/13/2013 7:48 PM
[Vol. 88:1
asserted that the case involved commercial speech, the argument turned to a discussion of the Court’s decision in Central Hudson Gas & Electric Corp. v. Public Service Commission.64 In Greenmoss Builders, a holding that the credit report at issue constituted commercial speech would have yielded the conclusion, under the Central Hudson test, that it was not protected by the First Amendment at all because it was false. As Powell noted, White “said if respondent is right about commercial speech, petitioner has conceded falsity—flunking the first test of Central
connection with the Dun & Bradstreet type of publication, and I’m just wondering if that wouldn’t lead us to having to recognize First Amendment rights in a 10(b)(5) situation or an ordinary fraud situation, anything? MR. GARRETT: I do not believe so, Your Honor, because what we are talking here about is the sole issue of speech in context of defamation, not speech in the context of giving advisor’s advice to the SEC. And as I indicated, I believe a totally different analysis would apply there. What we are asking the Court to recognize is that the First Amendment protects all speakers against these types of awards, and we do not believe that the state interest varies in securing gratuitous awards of money damages for plaintiffs depending on the speaker or the message. 64. 447 U.S. 557 (1980). Overruling several decades of precedent holding otherwise, see Valentine v. Chrestensen, 316 U.S. 52, 54 (1942) (“We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.”), the Court in 1976 asserted for the first time that so-called “commercial speech”—i.e., typically described as speech that “does no more than propose a commercial transaction”—is entitled to at least some degree of First Amendment protection. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976) (internal quotation marks omitted). In Virginia Board, the commercial speech in question was described as: “I will sell you the X prescription drug at the Y price.” Id. at 761. Thus, the category of commercial speech subject to comparatively modest First Amendment protection has typically been confined to analogous advertising and solicitation. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 534 (2001) (cigarette advertising outdoors and at point-of-sale); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 492 (1996) (alcohol advertisements); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 629 (1985) (legal services advertisements); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507 (1981) (commercial billboards). In Central Hudson, the Court distilled the so-called Central Hudson test from its previous, albeit less than definitive, commercial speech jurisprudence. 447 U.S. at 560–61, 564. Specifically, the test, which assesses those circumstances in which government regulation of commercial speech violates the First Amendment, is comprised of four factors: (1) the speech must not propose or advocate the sale of an illegal product or be false or otherwise misleading; (2) the state interest in regulating the speech must be substantial; (3) the regulation must “directly advance” the state’s interest; and (4) the regulation cannot be “more extensive than is necessary to serve that interest.” Id.; see, e.g., id. at 563 (“[T]here can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity.”). Ultimately, however, the Court rejected the plaintiff’s argument, presumably because the credit report at issue did not itself purport to propose a commercial transaction. See Greenmoss Builders, 472 U.S. at 762 n.8 (“We also do not hold, as the dissent suggests we do, that the report is subject to reduced constitutional protection because it constitutes economic or commercial speech. We discuss such speech, along with advertising, only to show how many of the same concerns that argue in favor of reduced constitutional protection in those areas apply here as well.”) (internal citations omitted); id. at 790 (Brennan, J., dissenting) (noting that speech at issue proposed no commercial transaction).