Commercial Speech and the Central Hudson Test: Navigating First Amendment Protections for Advertising

The First Amendment protects freedom of speech, but the extent of that protection varies for different types of speech. Commercial speech, which is generally defined as speech that proposes a commercial transaction, receives less protection than non-commercial speech. The Supreme Court has established a specific test to determine when restrictions on commercial speech are constitutional.

The Central Hudson Test: A Four-Part Analysis

The Central Hudson test, derived from the landmark case Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, provides a framework for evaluating government regulations on commercial speech:

1. Lawful Activity and Non-Misleading: The speech must concern lawful activity and cannot be misleading. If it doesn't meet this basic requirement, it's not protected by the First Amendment.
   • Kaufman v. ACS Systems, Inc., 110 Cal.App.4th 886 (2003)
2. Substantial Government Interest: The government must demonstrate a significant interest in regulating the speech.
   • City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993), People v. Martinez, 15 Cal.5th 326 (2023)
3. Direct Advancement of the Interest: The regulation must directly advance the government's stated interest. There should be a clear connection between the restriction and the goal it aims to achieve.
   • People v. Martinez, 15 Cal.5th 326 (2023), Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980)
4. Not More Extensive Than Necessary: The regulation shouldn't be overly broad. It must be reasonably tailored to achieve the government's objective, though it doesn't have to be the absolute least restrictive option.
   • Kasky v. Nike, Inc., 27 Cal.4th 939 (2002)

Why Less Protection for Commercial Speech?

The Supreme Court has reasoned that commercial speech deserves less protection than non-commercial speech for several reasons:

• Verifiability: Businesses are more capable of verifying the accuracy of their commercial speech.
• Hardiness: Commercial speech is driven by profit motive, making it more resilient to regulation.
• Government Interest: Preventing consumer deception and promoting fair commercial practices are legitimate government goals.
  • Serova v. Sony Music Entertainment, 13 Cal.5th 859 (2022)

Government Regulation of Commercial Speech:

The government can regulate commercial speech to prevent false or misleading advertising, protect consumers from unfair practices, and prohibit the promotion of illegal activities. * City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993)

Intermediate Scrutiny:

Courts apply intermediate scrutiny to regulations on commercial speech. This is a less demanding standard than the strict scrutiny applied to restrictions on non-commercial speech. * Kasky v. Nike, Inc., 27 Cal.4th 939 (2002)

In Conclusion:

The Central Hudson test provides a structured framework for analyzing the constitutionality of government restrictions on commercial speech. It balances the First Amendment's protection of free enterprise with the government's interest in protecting consumers and ensuring fair commercial practices.

Molly Northrup is a law student, MBA and paralegal at the Law Office of Daniel Horowitz.