Commercial Speech

Just how much protection does commercial speech have under the First Amendment? That is the question that is being raised after Congress recently passed a law prohibiting tobacco advertising within 1000 feet (304 meters) of schools. The law contains other speech restrictions as well. Wednesday's New York Times has an interesting piece on the legislation, which President Obama says he will sign, and the constitutional issues. As the Times points out:

Commercial free speech is not an absolute right, legal experts say. There are clear limits, for instance, on false advertising and on promotion of illegal activity. The issue grows more complicated if the advertising is both truthful and concerns a legal activity, like smoking by adults.

The Supreme Court in 1980 said such speech can be restricted only if it would directly advance a “substantial government interest” and the regulation was “narrowly tailored” to fit the interest. In the case of the new tobacco law, Congress specifically defined the government interest as a reduction in youth smoking.

But the tobacco industry denies that any of its advertising is aimed at young people.

The American Civil Liberties Union (ACLU) has also taken issue with the law saying that the legislation’s limits on commercial speech are broader than needed to accomplish the goal of reducing under-age smoking, i.e. the law is not narrowly tailored.