Commercial Speech

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.

Nike v. Kasky (2003)

Nike v. Kasky (2003) raised, but did not resolve, contemporary issues
regarding First Amendment protection for corporate speech in matters of
public concern.

Jack Daniel’s Properties, Inc. v. VIP Products LLC (2023)

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

Matal v. Tam(2017)

In Matal v. Tam (2017), the Supreme Court ruled that a federal law
prohibiting disparaging trademark names was unconstitutional under the
First Amendment.

Central Hudson Gas and Electric Corp. v. Public Service Commission (1980)

Central Hudson Gas and Electric Corp. v. Public Service Commission (1980)
clarified First Amendment protection of commercial speech, determining when
it could be regulated.

Tennessee Secondary School Athletic Association v. Brentwood Academy(2007)

Tennessee Secondary School Athletic Association v. Brentwood Academy (2007)
ruled that enforcement of anti-recruiting rules did not violate the First
Amendment.

City of Cincinnati v. Discovery Network(1993)

City of Cincinnati v. Discovery Network (1993) held that Cincinnati’s
restrictions on the distribution of commercial flyers in news racks
violated the First Amendment.

Thompson v. Western States Medical Center (2002)

Thompson v. Western States Medical Center (2002) ruled that a federal
statutory prohibition on the advertisement of compounded drugs violated the
First Amendment.

Edenfield v. Fane (1993)

In Edenfield v. Fane (1993), the Supreme Court said direct solicitation of
clients was within the First Amendment rights of certified public
accountants.

United States v. United Foods, Inc. (2001)

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
companies.

Friedman v. Rogers (1979)

In Friedman v. Rogers (1979), the Court struck down a First Amendment
challenge to a Texas law that prohibited optometrists from advertising
under a trade name.

Commercial Speech

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