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In law, commercial speech is
speech Speech is a human vocal communication using language. Each language uses phonetic combinations of vowel and consonant sounds that form the sound of its words (that is, all English words sound different from all French words, even if they are th ...
or
writing Writing is a medium of human communication which involves the representation of a language through a system of physically inscribed, mechanically transferred, or digitally represented symbols. Writing systems do not themselves constitute h ...
on behalf of a business with the intent of earning revenue or a
profit Profit may refer to: Business and law * Profit (accounting), the difference between the purchase price and the costs of bringing to market * Profit (economics), normal profit and economic profit * Profit (real property), a nonpossessory inter ...
. It is
economic An economy is an area of the production, distribution and trade, as well as consumption of goods and services. In general, it is defined as a social domain that emphasize the practices, discourses, and material expressions associated with th ...
in nature and usually attempts to persuade
consumer A consumer is a person or a group who intends to order, or uses purchased goods, products, or services primarily for personal, social, family, household and similar needs, who is not directly related to entrepreneurial or business activities. ...
s to purchase the business's product or service. The
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. Federal tribunals in the United States, federal court cases, and over Stat ...
defines commercial speech as speech that "proposes a commercial transaction".


In the United States

In the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
, commercial speech is "entitled to substantial First Amendment protection, albeit less than political, ideological, or artistic speech". In the 1980 case '' Central Hudson Gas & Electric Corp. v. Public Service Commission'', the U.S. Supreme Court developed a four-part test to determine whether commercial speech regulation violates the First Amendment: # Whether the commercial speech concerns a lawful activity and is not misleading # Whether the government interest asserted to justify the regulation is "substantial" # Whether the regulation "directly advances" that government interest # Whether the regulation is no more extensive than necessary to serve that interest


History

Until the 1976 Supreme Court case '' Virginia State Pharmacy Board v. Virginia Citizens Consumer Council'', commercial speech in the United States was viewed as an "unprotected" category of speech beyond the pale of First Amendment protection. Indeed, the term "commercial speech" was first introduced by the Supreme Court when it upheld '' Valentine v. Chrestensen'' in 1942, which ruled that commercial speech in public is not constitutionally protected. In 1976, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council ruled that states are not allowed to limit pharmacists in providing information about prescription drug prices. The case included a Virginia statute that restrained pharmacists from advertising prescription drug prices. This case is relevant as it resulted in the creation of the commercial speech doctrine, and ruled that purely commercial advertising gets First Amendment protection and has no constitutional restraints. Justice Blackmun noted, for the majority of the Court's ruling of 7-1, that while he believes while commercial speech should receive First Amendment protection, it should also still be regulated. In upholding the regulation, the Supreme Court said, "We are...clear that the Constitution imposes...no restraint on government as respects purely commercial advertising". This ruling, however, would be overturned with '' Virginia State Pharmacy Board v. Virginia Citizens Consumer Council'' (1976) and '' Central Hudson Gas & Electric Corp. v. Public Service Commission'' (1980). The Court has recognized that commercial speech does not fall outside the purview of the First Amendment and has afforded commercial speech a measure of First Amendment protection "commensurate" with its position in relation to other constitutionally guaranteed expression. The Court has set forth a framework under ''Central Hudson'' for analyzing commercial speech under
intermediate scrutiny Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review (least rigorous) and strict scrutiny (most rigorous). In order ...
: Whereas ''Central Hudson'' limits what commercial speech can be said, another facet is related compelled commercial speech in the form of government-mandated disclaimers or other information required to be included in some forms of commercial speech. This concept was established as constitutional in '' Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio'', , which established the Zauderer standard to judge which such government-mandated speech does not violate First Amendment rights of the commercial speaker. ''Zauderer'' found that the government can mandate commercial speech to include "purely factual and uncontroversial information" when it is reasonably related to the government's interest and "to dissipate the possibility of consumer confusion or deception". The Zauderer standard has since been expanded within Circuit Court case law to extend beyond protecting consumer deception as to include factual information for consumer awareness, such as food packaging information, as long as the information serves a reasonable government interest.


Criticism

Members of the Supreme Court have expressed doubts about the Court's differential treatment of commercial speech in relation to other types of speech. Justice
Clarence Thomas Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 1 ...
replied, in '' 44 Liquormart, Inc. v. Rhode Island'' (1996), that "I do not see a philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech." Justice Thomas would apply
strict scrutiny In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate th ...
to regulations of commercial speech. Justice
Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
expressed "discomfort with the ''Central Hudson'' test, which seem d to himto have nothing more than policy intuition to support it". U.S. Court of Appeals judge Alex Kozinski criticized the 1942 '' Valentine v. Chrestensen'' ruling, stating that "the Supreme Court plucked the commercial speech doctrine out of thin air".


In the European Union

The
European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
has held that commercial speech is protected under Article 10 of the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
(ECHR) on several occasions since the 1980s, but lacks a counterpart to the commercial speech doctrine that exists under U.S. law. In
Germany Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwee ...
, the courts adopted a strict approach to advertising and commercial speech due to its emphasis on ensuring
competition Competition is a rivalry where two or more parties strive for a common goal which cannot be shared: where one's gain is the other's loss (an example of which is a zero-sum game). Competition can arise between entities such as organisms, ind ...
. For example, in ''Barthold v. Germany'' (1985), the
European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
held that enjoining a veterinary surgeon for advocating for 24-hour animal clinics (which did not exist at the time in
Hamburg Hamburg (, ; nds, label=Hamburg German, Low Saxon, Hamborg ), officially the Free and Hanseatic City of Hamburg (german: Freie und Hansestadt Hamburg; nds, label=Low Saxon, Friee un Hansestadt Hamborg),. is the List of cities in Germany by popul ...
,
Germany Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwee ...
) violated his free expression rights. After the vet was quoted in a newspaper article, he was sued for violating the veterinary association's rules of professional conduct, which barred vets from advertising, and he was injuncted from making similar statements in the future. In the 1990 ''Markt Intern Verlag GmbH and Klaus Beermann v. Germany'' case—described Europe's "leading case concerning speech in commercial context"—the European Court of Human Rights concluded that there had been no violation of Article 10 when Germany's Federal Court of Justice prohibited a publishing company from repeating statements that had been published in a specialist information bulletin criticizing the practices of another company. It noted that the prohibition did not exceed the "margin of appreciation which national authorities were allowed in laying down, in accordance with Article 10, §2, formalities, conditions, restrictions or penalties on the exercise of freedom of expression".


See also

*
First Amendment to the United States Constitution The First Amendment (Amendment I) to the United States Constitution prevents the government from making laws that regulate an establishment of religion, or that prohibit the free exercise of religion, or abridge the freedom of speech, the ...
*
Freedom of speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
* Professional speech * '' Central Hudson Gas & Electric Corp. v. Public Service Commission'' * '' Anonymous Online Speakers v. United States District Court for the District of Nevada'' * '' Valentine v. Chrestensen''


References

{{US1stAmendment, speech, state=expanded * Advertising American legal terminology