Commercial Speech: protected by first am. (but ltd. protection)!
a) Def: speech advertising a product or proposing a commercial transaction.
b) Truthful speech: (mid-level review) Va Pharmacy Board
i) Directly advances
ii) Substantial government interest
iii) No more extensive than necessary
c) False, deceptive, illegal speech:
i) False, deceptive, illegal speech may be forbidden by gov’t. But as long as product is illegal, it must get same gov’t protection as everything gets (ie as long as cigarettes are legal, they must be allowed to advertise).
ii) Speech proposing an illegal transaction may be forbidden.
d) Sometimes commercial speech gets C’al protection per Va State Bd. of Pharm.
e) Commercial speech is C’ally protected if: Central Hudson test
i) It is not misleading & relates to lawful commercial activity,
ii) There is a substantial governmental interest in regulating the speech,
iii) The regulation directly advances the asserted governmental interest,
iv) The regulation is no more expansive than necessary (which doesn’t mean “least restrictive means, but means “reasonable fit” per Fox)
f) Even if a regulation seems like a commercial speech regulation, if it is content based, used compelling/narrow test. (Con Edison)
g) Unprotected commercial speech: information we require professionals to include is tested only by a rzblness standard (rzbly related to the state’s interest in preventing consumer deception).
h) Lawyers: state bar can limit personal solicitation for pecuniary gain; why? b/c substantial gov’t in terest
i) Can put prior restraints on commercial speech (require letter to be sent to state bar before sent to potential clients), but a blanket ban on speech won’t be allowed unless the speech is deceptive or related to illegal activities (44 liquormart said you can’t stop all liquor price ads altogether).
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