The first amendment guarantees that "Congress shall make no law... abridging the freedom of speech or of the press."' Over the past few decades, the Supreme Court has applied the first amendment to commercial speech only sporadically. The Court has vacillated between refusing to apply the first amendment, liberally extending first amendment guarantees,4 and applying limited first amendment protections to commercial speech.' This expansion and contraction of first amendment protection stems partly from three factors: (1) the Court's characterization of the speech at issue as commercial or noncommercial, (2) the Court's perception of the relevant regulation as content-based or con-tent-neutral, and (3) the Court's willingness to defer to a state's judgment on the necessity of imposing a restriction on commercial speech.The Court accords commercial speech less first amendment protection than noncommercial speech and scrutinizes regulations of commercial speech more leniently than restrictions on noncommercial speech. Similarly, the Court deems content-based restrictions more invidious than content-neutral regulations and reviews the former more strictly than the latter. Finally, the greater the deference given state judgments, the greater the likelihood that the Court will uphold the regulation of commercial expression.
Mary B. Nutt,
Trends in First Amendment Protection of Commercial Speech,
41 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol41/iss1/5