In the wake of Central Hudson: The failure of the commercial speech doctrine to adequately protect advertising under the First Amendment
Abstract
Given the importance of free enterprise in a capitalistic system, it would seem courts would strive to protect the rights of advertisers to promote their goods and services. But, following the lead of the U.S. Supreme Court, courts consistently support the position that commercial speech can be afforded less protection than noncommercial speech by upholding regulations which limit advertising. This study reviews the history of the commercial speech doctrine through cases leading up to the 1980 Central Hudson decision and examines the post Central Hudson decisions involving the promotion of alcohol. This study argues that commercial speech regulations and the inconsistent application of the Central Hudson test are caused by a failure of the courts to present a forceful case for treating advertising as anything less than fully protected under the First Amendment. Three specific conflicts regarding the treatment of advertising are identified and developed: (1) the lack of a clear definition of commercial speech; (2) conflicts between the treatment of commercial speech and the traditional regulation of speech involving time, place, or manner restrictions or speaker/listener motive; and, (3) the failure to promote the values and interests encompassed in the First Amendment. These failures have created an unpredictable, inconsistent, and an unworkable application of the commercial speech doctrine and potentially inhibit the free flow of information. The study closes with a rational for consistent treatment of commercial speech, alternatives to bans, and proposed standards judicial review. The researcher concludes that, until such time as the Supreme Court can provide justification for lesser protection or guidance which conforms to rational legal standards, the state of commercial speech will remain unsettled. The adoption of regulatory standards which allow for a free flow of information are necessary to best serve the interests of the speaker, listener, and the state.
Degree
Ph.D.
Advisors
Berg, Purdue University.
Subject Area
Communication|Law
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