Analysis of the First Amendment and Advertising

7/25/2019 Analysis of the First Amendment and Advertising

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Voit Conflicts Between Advertising and the First Amendment

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TABLE OF CONTENTS

Abstract 3

Introduction 4

Cases and Literature 5

Discussion

!"inion #$

Conclusion ##

%or&s Cited #4

Bibliogra"h' #(

)tatement of Academic integrit' #


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ABSTRACT

*he First Amendment and advertising have historicall' conflicted in the +nited )tates,

!riginall'- the First Amendment did not "rotect advertising, Advertising was sub.ect to

strict regulations and had no freedom of s"eech, In $/4#- the idea of 0commercial

s"eech1 was introduced to the )u"reme Court- and in the $/2s- the )u"reme Court

began reviewing the stance that commercial s"eech is not "rotected, In $/- the

)u"reme Court heard the crucial Central udson case, *his case develo"ed

Commercial )"eech Doctrine that states that onl' advertising that is false or for illegal

goods or services ma' be com"letel' banned, *he Doctrine also states that regulations

on advertising must "rove fit with and advance a reasonable state interest, )ince its

ince"tion- the Commercial )"eech Doctrine has "rovided a sufficient answer for the

+nited )tates .udiciar' s'stem to rule on subseuent conflicts between advertising and

the First Amendment, %hile a changing landsca"e in societ'- culture- technolog'- as

well as changing legal issues "rove to ensure further conflicts- the Commercial )"eech

Doctrine a""ears to be the answer into the future as well,


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LITERATURE AND CASES - listed chronologically

*he First Amendment

0Congress shall ma&e no law res"ecting an establishment of religion- or "rohibiting the

free e8ercise thereof9 or abridging the freedom of s"eech- or of the "ress9 or the right of

the "eo"le "eaceabl' to assemble- and to "etition the government for a redress of

grievances,1

Valentine v, Christensen :$/4#;

*he first case "resented to the )u"reme Court that commercial s"eech was not

"rotected b' the +,), constitution, *his brought the issue of commercial s"eech into

light,

7ittsburgh 7ress Co, v, 7ittsburgh Commission on uman


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"recedent that consumers can ma&e decisions that are best for them when "rovided

with the "ro"er information,

Linmar& Associates- Inc, v, *ownshi" of %illingboro :$/22;

6ven though the intentions of "reventing 0white flight1 ma' be considered good- 0For

)ale1 signs are not to be banned because the' serve a clear "ur"ose of communication,

Central udson ?as and 6lectric Cor", v, 7ublic )ervice Commission :$/;

Blan&et bans on advertising are not allowed- li&e the ban on all electric com"an'

advertisements, *he Central udson case established the Commercial )"eech

Doctrine,

*he Commercial )"eech Doctrine

0*he First Amendment does not "rotect either false or misleading ads or ads for

unlawful goods or services, ?overnment ma' regulate truthful advertising for legal

goods and services if the following conditions are met@ :a; there is a substantial state

interest to .ustif' the regulation, :b; *here is evidence that the regulation directl'

advances this interest, :c; *here is a reasonable fit between the state interest and the

government regulation,

etromedia- Inc v, Cit' of )an Diego :$/$;

Allowing for billboards to be "laced 0onsite1 but not 0offsite1 discriminated against non

commercial s"eech because those without "ro"ert' were not afforded the same


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"rivilege of s"eech,

embers of the Cit' Council for the Cit' of Los Angeles v, *a8"a'ers for Vincent :$/4;

!utdoor advertising could be banned for aesthetic "ur"oses,

Lorillard *obacco Co, v, ations s"end their mone' in

regards to broadcasting electioneering information close to an election is a violation of

the First Amendment,


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DISCUSSION

In order to understand the histor' of advertising and its conflicts with the First

Amendment- a reasonable definition of advertising must be "rovided, *he legal

definition of an advertisement is an' action or device used to draw attention to

merchandise- goods- or services, Advertising is carried out in a manner that would be

defined as s"eech according to the First Amendment- be it through fliers- billboards- or

even on the Internet,

istoricall'- advertising- or 0commercial s"eech1 as it ma' be referred to- has been one

of the most regulated forms of s"eech in the +nited )tates, +ntil the middle of the # th

centur'- commercial s"eech was considered a clear e8ce"tion to the First Amendment,

*he idea was that somebod' could not use the "ublic domain for commercial gain, *he

ideas behind the "rotection of free s"eech offered in the First Amendment were "ure in

the sense that business and "rofits did not belong, *he Constitution did not e8"licitl'

"rotect such s"eech- and therefor it was not to be "rotected,

It is im"ortant to &ee" in mind that advertising itself was not illegal- but rather- there

were >ero "rotections allowed for advertising within free s"eech, *herefor- advertising

was able to be regulated and had little means of fighting against such regulations,

Commercial )"eech being "rotected or un"rotected first came to light in $/4#- when the

)u"reme Court ruled on Valentine v, Christensen, F,, Christensen doc&ed his %orld


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%ar I submarine in the 6ast


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%hile Valentine v, Christensen did little to change the wa' that advertising was

conducted- it was the first time that commercial s"eech was brought u" as a conce"t in

the federal legal s'stem,

After the Christensen decision- ver' little came u" in regards to commercial s"eech and

the First Amendment for more than 3 'ears, In $/23- the 7ittsburgh 7ress Co, v,

7ittsburgh Commission on uman


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In $/25- the )u"reme Court delivered its o"inion on Bigelow v, Virginia, *he !"inion of

the Court that commercial s"eech is indeed "rotected- although it ma' be regulated, In

the o"inion delivered b' r, ustice Blac&mun- not onl' was the Virginia )tatute

declared illegal- as abortion is a constitutionall' "rotected right- it was stated that the

)u"reme Court has decided to 0give a defendant standing to challenge a statute on

grounds that it is faciall' overbroad- regardless of whether his own conduct could be

regulated b' a more narrowl' drawn statute- because of the danger of tolerating- in the

area of First Amendment freedoms- the e8istence of a "enal statute susce"tible of

swee"ing and im"ro"er a""lication,1 *his means that s"eech is not suddenl'

un"rotected because it e8ists as a "aid commercial advertisement- and that leaving

such s"eech un"rotected is "otentiall' dangerous to the freedom of s"eech "rotected

b' the First Amendment,

*he Bigelow case was the "aved the wa' for what would eventuall' be &nown as the

Commercial )"eech Doctrine, )everal )u"reme Court cases followed Bigelow that

furthered the notion that commercial s"eech did have some "rotections,

Virginia 7harmac' Board v, Virginia Consumer Council :$/22; ruled against a Virginia

statute that "rohibited "rice advertising for "harmaceuticals, *he Court said that it was

unreasonable for a statute to be so 0"aternalistic1 and to close channels of information-

rather than to leave them o"en- for the "ur"ose of "eo"le being well informed enough to

ma&e decisions in their own best interest, %hile this case did further the notion that


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advertising was "rotected under the First Amendment- it also furthered the notion that

regulations were indeed allowed, 0Commonsense differences1 e8ist between

commercial s"eech and other t'"es of s"eech that allow for regulation to be tolerated,

Also in $/22- Linmar& Associates- Inc v, *ownshi" of %illingboro was heard, *he

*ownshi" of %illingboro- - was integrating and banned the "lacement of for sale signs

in front 'ards in order to "revent white flight,= *he townshi" was worried that seeing a

forsale sign would snowball into the mass migration of whites out of the area and offset

the ongoing racial integration, %hile the ban had what could be "erceived as good

intentions- it was ruled that the forsale signs were a t'"e of commercial s"eech

between a homeowner and "urchaser- and thus "rotected, Fear of "eo"le reacting

0irrationall'1 was not enough cause to su""ort the regulation on this s"eech,

In $/- the Commercial )"eech Doctrine was solidified into a form that we currentl'

see toda' after the ruling on Central udson ?as G 6lectric Cor", v, 7ublic )ervice

Commission- also &nown .ust as Central udson, *he Central udson test is still used

toda' as the balancing test for commercials"eech regulations,

ew Eor& had banned "romotional ads b' electric utilit' com"anies, *he state had an

interest in "romoting the conservation of energ', Central udson ?as and 6lectric Cor",

argued that this ban violated the First and Fourteenth Amendment, *he )u"reme Court

ruled overturned the ban, %hile the Court did recogni>e that the ban did further the

interest of the state- the ban did not distinguish between advertisements that would


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have an effect and those that would have no effect at all, *he ban was an

unconstitutional blan&et smothering all advertisement regardless,

*he Central udson case created a test that is still in use toda' for regulations on

commercial s"eech, In order for truthful advertising for legal goods and services to be

regulated- it must meet the following conditions@

a, *here is a substantial state interest to .ustif' the regulation,b, *here is evidence that the regulation directl' advances this interest,c, *here is a reasonable fit between the state interest and the government

regulation,

+nder the modern commercial s"eech doctrine- the First Amendment does not "rotect

false or misleading advertisements- or advertisements for unlawful goods or services,

*he 'ears following the Central udson case contained several conflicting o"inions as

the )u"reme Court wor&ed itself out, For e8am"le- etromedia- Inc v, Cit' of )an Diego

:$/$; struc& down a ban on outdoor advertising that cited traffic safet' as being of

concern, owever- in $/4- Cit' Council v, *a8"a'ers for Vincent u"held a ban on

outdoor advertising that advanced the state interest of aesthetic grounds,

%ithin regulating commercial s"eech- the regulation of commercial s"eech in regards to

0vices1 "ro"osed an interesting conundrum, 6fforts were starting to be made to regulate

advertising for vices such as gambling- legal se8ual goods and services- alcohol and

tobacco stricter than other "roducts, )tates were citing a moral interest in the regulation

of such goods and services, It was eventuall' determined that sometimes the underl'ing


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cause for such regulations was anticom"etitive in nature- as sometimes these vices

overla""ed with the inner wor&ings of the government, *he )u"reme Court went bac&

and forth on decisions involving vice advertising- until #$,

Lorillard *obacco Co, v,


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began "romoting the "rotection of commercial s"eech- advertising has become a multi

billion dollar industr' at the forefront of American culture,

In a societal and cultural conte8t- the distinction between "olitical s"eech- which is full'

"rotected b' the First Amendment- and commercial s"eech- which is "rotected but ma'

be regulated- is hard to distinguish between,

In the +nited )tates v, Caronia :6,D,,E, #;- the #ndCircuit Court struc& down a

ruling that it was illegal for "harmaceutical re"resentatives and manufacturers to

"romote the +,), Food and Drug Administration a""roved drug H'lem for off label uses

that it might be effective for, Caronia claimed that he was "rosecuted for his use of

s"eech- and thus his First Amendment rights were effectivel' violated, *he FDA claimed

that this s"eech was commercial and sub.ect to their regulations,

In the !"inion of the Court- it is written that the 0regulations do not e8"ressl' "rohibit the

"romotion= or mar&eting= of drugs for offlabel use,1 Furthermore- Caronia=s defense

argued that the 0First Amendment does not "ermit the government to "rohibit and

criminali>e a "harmaceutical manufacturer=s truthful and non misleading "romotion of

an FDAa""roved drug to "h'sicians for off label use where such use is not itself illegal

and others are "ermitted to engage in such s"eech,1 Further into the o"inion- the First

Amendment is discussed in the conte8t that +nited )tates v, Caronia raised, *he First

Amendment "revents the regulation of s"eech due to content- and it was found that the

FDA was guilt' of this, 0Content based regulations are "resum"tivel' invalid,1 *he


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e8"ression must be directl' 0related to the economic interests of the s"ea&er and its

audience,1

In the +nited )tates v, Caronia- the First Amendment was u"held on the idea that

s"eech cannot be regulated solel' on content alone, 6ven when that s"eech is

regulated- the regulations must be clearl' against commercial s"eech, As the )u"reme

Court has grown through these issues- the' have develo"ed a test to determine if

s"eech is indeed commercial instead of "olitical,

a, *he e8"ression is an advertisement,b, *he s"eech refers to a s"ecific "roduct,c, *he s"ea&er has an economic motivation for s"ea&ing,

%ith advertising being the giant that it is- there will be s"eech that comes u" in during

"romotional activities, *his s"eech ma' not be solel' commercial- however- and

therefore it ma' not be sub.ect to as strict of the regulations, As the line blurs between

"olitical and commercial s"eech- so will the regulations,

From a societal and cultural stand"oint- as well as a legal stand "oint- the +nited )tates

has shifted to be friendlier towards big businesses, 0Cor"orate "ersonhood1 gives

cor"orations legal rights that are en.o'ed b' regular "eo"le, *his a""lies legall'- as one

cor"oration can sue another, *his also a""lies in terms of free s"eech and advertising,

A natural "erson in the +nited )tates has their s"eech "rotected b' the First

Amendment, As cor"orate "ersonhood becomes more acce"ted- commercial s"eech


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becomes more "rotected,

Citi>ens +nited v, Federal 6lection Commission :#$; dealt with cam"aign s"ending b'

organi>ations, Citi>ens +nited was accused b' the Federal 6lection Commission of

what was considered illegal "olitical advertising b' "romoting Hillary Clinton: the Movie.

Citi>ens +nited claimed that the' were well within their First Amendment rights, *he

ruling b' the )u"reme Court stated that Citi>ens +nited was disclosing their

endorsements "ro"erl'- and thus the' were "rotected,

Cor"orate "ersonhood has become increasingl' more su""orted- es"eciall' b' those

who benefit- but not without o""osition, %hile )u"reme Court did not directl' s"ea& of

cor"orate "ersonhood in the case- the ove to Amend was created as an immediate

result of this ruling, *he ove to Amend see&s to directl' abolish cor"orate "ersonhood-

and thus abolish a cor"oration=s First Amendment rights through a constitutional

amendment, *his means that an' of the "revious rulings- which have "rotected

advertising under the First Amendment- would be overturned,

As cor"orations have gained more legal rights- the' continue to e8ercise them,

Advertising sees less conflict with the First Amendment than it has in the "ast via the

rulings that have "rotected commercial s"eech and cor"orate "ersonhood,

*echnolog' has drasticall' changed the landsca"e of advertising, %hat was once

"assing out fliers on a street can now be found digitall' in the hands of nearl' ever'


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American citi>en,

*he reasons for limiting commercial s"eech involve "rotecting the American "eo"le for

various reasons, *hese reasons include "rotecting children from harmful substances-

such as alcohol and tobacco- "rotection from false advertising- and "rotection from the

advertising of illegal goods and services, *echnolog'- s"ecificall' the Internet and the

devices that it is used on- has made the regulation of advertising harder than ever,

In the conte8t of the First Amendment- the regulation of advertising has to do s"ecificall'

with content and methods of the s"eech, othing 'et has e8em"ted online advertising

from the Commercial )"eech Doctrine, From a legal stand"oint- however- the Internet is

the %ild %est, An'one ma' "ut u" a website and create content- such as

advertisements, For it to be regulated- it needs to be seen b' the "ro"er authorities, It is

not hard for the blac& mar&et to evade such authorities, Advertisements for illegal goods

and services ma' be found on "laces as common as Craigslist- which is e8"ansive, *he

o""ortunit' for misleading advertisements to be "laced is as infinite as the Internet

itself,

In the future- the issue of advertising conflicting with the First Amendment loo&s to more

clearl' define the Commercial )"eech Doctrine, As more cases arrive with the Internet

being the means to distribute advertisement- the rules will become more clearl' defined,

In general- the idea that the First Amendment "rotects advertising has been clear to

favor the advertisers, a.or cases in the histor' of advertising have been ma.or ste"s


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forward and not bac&wards, *he Court=s !"inions have continued to state the

im"ortance of the "rotection of commercial s"eech- even when it has ruled against an

advertiser, Cases li&e the recent #$# ruling on e mari.uana- which "resents a uniue

issue- es"eciall' a""arent in border states li&e ew Eor&, Freuentl' on the radio in

these areas- advertisements for Canadian businesses- including liuor stores ma' be


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heard, )hould Canada be able to legali>e mari.uana com"letel'- and ew Eor& )tate

continue to outlaw it- would the advertising be bannedJ !n one side of the coin-

advertising for mari.uana would violate the Commercial )"eech Doctrine because it is

for an illegal good or service b' ew Eor& )tate=s standard- but on the other side of the

coin- it would be advocating for a good or service available s"ecificall' in Canada- and

thus not illegal in ew Eor& )tate, *he "recedent set b' Bigelow v, Virginia states that

the advertising would be allowed, *his is a uestion the courts ma' have to answer in

the future,

OPINION

*he conflict between advertising and the First Amendment is one that is necessar',


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Free s"eech is im"ortant- however- there is a clear motive behind advertising and

commercial s"eech- and that is to ma&e mone', %ithout regulation- it would be ver'

eas' for advertising to become full of blatant lies in order to get "eo"le to s"end their

mone',

Advertising has become huge in the +nited )tates, In #$3- there were over $2$ billion

dollars s"ent on advertising in the +)- with the numbers on s"ending "redicted to rise

steadil' in the near future, *hat mone' is alread' incredibl' influential with how much

Americans are e8"osed to advertising, %ithout regulation- Americans would be in

danger of s"ending and o"en themselves u" to advertisements in wa's the' ma' not be

comfortable with, Children would be es"eciall' at ris&, *his is wh' we have the

Commercial )"eech Doctrine in the first "lace,

*o sa' that commercial s"eech should not be "rotected is uite ridiculous, Commercial

s"eech is s"eech after all- and thus it should be "rotected, *here is nothing inherentl'

wrong with ma&ing mone'- es"eciall' in a ca"italist societ', Issues come about when

immoral andKor unethical methods arise in the "rocess of ma&ing mone',

*he Commercial )"eech Doctrine currentl' "rovides a sufficient answer to the uestion

of where to draw the line on advertising,

CONCLUSION

*he histor' of the conflicts between advertising and the First Amendment is relativel'


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short- as the first case did not arise until $/4# in Valentine v, Christensen, )ince that

time- the .udicial s'stem of the +nited )tates has continued to wor& out what is and isn=t

allowable,

otabl'- the Commercial )"eech Doctrine- which arose from Central udson ?as G

6lectric Cor", v, 7ublic )ervice Commission :$/;- is still in use toda', *he

Commercial )"eech Doctrine states that advertising must be truthful and for legal goods

or services, *he Commercial )"eech Doctrine also states that if and when truthful

advertising for legal goods and services is regulated- there must be a substantial state

interest- there must be evidence that the "ro"osed regulations directl' advance a

substantial state evidence- and there must be reasonable fit between the state interest

and government regulation,


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versus what is "olitical or "lain individuals discussing a "roduct, *he lines continue to

blur, *al&ing about off brand uses of a "roduct- for e8am"le- is not illegal so long as the

sole intent is not to "rofit,

*he internet and other technologies- as well as the constant societal- cultural- and legal

changes within the +nited )tates ensure that there will continue be conflicts that need a

resolution in regards to the First Amendment,

)o long as the "ro"er information is available to consumers- the' are to be entrusted

with ma&ing the decisions that are best for them,

WORKS CITED

Advertising )"ending in the +,), #$4 M )tatistic, Statista, *he )tatistics 7ortal- n,d,


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%eb, $ Dec, #$5,

Bigelow v, Commonwealth of Virginia- 4#$ +,), / :$/25;

Central udson ?as and 6lectric Cor", v, 7ublic )ervice Commission- 442 +,), 552

:$/;

Citi>ens +nited v, Federal 6lection Commission- 55 +,), 3$ :#$;

Lorillard *obacco Co, v,


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ens Consumer Council- 4#5 +,), 24

:$/2(;


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BIBLIOGRAPHY

Citi>ens +nited v, Federal 6lection Commission, Oyez.ChicagoNent College of Law

at Illinois *ech- n,d, Dec 4- #$5,

Coffman- Neith, Limits on ari.uana Advertising Land Colorado in Court, Reuters,

*homson


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)ullivan- *homas, +) v, Caronia- !ne Eear Later, Policy and Medicine, 7olic' and

edicine- # Feb, #$4, %eb, ( Dec, #$5,


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STATEMENT OF ACADEMIC INTEGRITY

I affirm that I am aware of the Buffalo )tate Communication De"artment statement on"lagiarism- found at htt"@KKcommunication,buffalostate,eduK"lagiarism ,

I affirm that I have read the Communication De"artment statement on "lagiarism,I affirm that I have not "lagiari>ed an' "ortion of the research "a"er that I am submittingfor C! 4% Fall #$5,I understand that if it is discovered that I have "lagiari>ed an' "ortion of the research"a"er that I am submitting- that I will receive a 01 :>ero; on the assignment with noo"tion to resubmit the wor&, I further understand that the matter will be referred to theCommunication De"artment chair for disci"linar' action,

OOOOOOOOOOOOOOOOOOOOOOOOOO

)ignature

OOOOOOOOOOOOOOOOOOOOOOOOOO7rinted ame

OOOOOOOOOOOOOOOOOOOOOOOOOODate

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