Nike v. Kasky (2003) raised, but did not resolve, contemporary issues
regarding First Amendment protection for corporate speech in matters of
Commercial speech is a form of protected communication under the First Amendment, but it does not receive as much free speech protection as forms of noncommercial speech, such as political speech.
One important test developed by the Court to determine protection for commercial speech is the Central Hudson test. With this test, courts determine how far the regulation of commercial speech can go before it runs afoul of the First Amendment.
If the speech is fraudulent or illegal, the government can freely regulate it without First Amendment constraints. If it is not, then the court must ask whether the asserted governmental interest is substantial. If both questions are answered yes, the court must determine whether the regulation directly advances the governmental interest asserted and whether it is more extensive than is necessary to serve that interest. If the regulation is narrowly tailored to secure the interest, then the regulation of the commercial speech will be upheld.
Following are several Supreme Court cases in which commercial speech under the First Amendment was at issue.
Although parody, like satire, is generally recognized as protected speech under the First Amendment, the Supreme Court decision in Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599 U.S. ____ (2023), demonstrates that this is not always so when it comes to trademarking. The case, which was unanimously decided in an opinion written by
In Glickman v. Wileman Brothers and Elliott, Inc., the Court held that
requiring farmers to contribute to the cost of generic advertising did not
abridge their freedom of speech.
Village of Hoffman Estates v. Flipside (1982) upheld an ordinance
regulating the sale of drug paraphernalia against charges that it was
unconstitutionally vague and overbroad.
In this Iancu v. Brunetti, the U.S. Supreme Court in 2019 invalidated a
provision of federal trademark law that prohibited “immoral or scandalous”
marks. The Court viewed the provision as sanctioning viewpoint
discrimination and also as substantially overbroad.
In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council,
Inc., the Court ruled that purely commercial speech deserves First
Ibanez v. Florida Department of Business and Professional Regulation Board
(1994) held that the First Amendment takes precedence over regulatory
agencies in cases involving commercial speech.
Linmark Associates, Inc. v. Township of Willingboro (1977) invalidated an
ordinance that limited “For Sale” signs in neighborhoods on First Amendment
In Lorillard Tobacco Co. v. Reilly (2001), the Supreme Court invalidated
state advertising restrictions on tobacco products, saying they violated
the First Amendment.