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
Los Angeles Police Department v. United Reporting Publishing Co. (1999)
said banning release of arrestee information for commercial purposes didn’t
violate the First Amendment.
In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council,
Inc., the Court ruled that purely commercial speech deserves First
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.
Valentine v. Chrestensen (1942) ruled that commercial speech is not
protected by the First Amendment. It has made assessing commercial speech
under the First Amendment harder.
In 2001, the Supreme Court overturned a federal program that required
mushroom producers to subsidize generic advertising for mushrooms. In
United States v. United Foods, Inc., the Court said the law was a clear
case of compelled speech and violated the First Amendment rights of the
Thompson v. Western States Medical Center (2002) ruled that a federal
statutory prohibition on the advertisement of compounded drugs violated the
Tennessee Secondary School Athletic Association v. Brentwood Academy (2007)
ruled that enforcement of anti-recruiting rules did not violate the First