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Legal Memorandum: Regulation of Commercial Speech

Issue: WHETHER ADVERTISING IS COMMERCIAL SPEECH, AND THUS IS SUBJECT TO FIRST AMENDMENT PROTECTION.

Area of Law: Antitrust & Trade Regulation, Constitutional Law
Keywords: Commercial speech; Advertising
Jurisdiction: Federal
Cited Cases: 214 F.3d 456; 545 N.W.2d 65; 527 U.S. 173; 447 U.S. 557; 626 F.2d 455; 989 S.W.2d 174; 309 N.W.2d 735; 486 N.W.2d 399; 458 U.S. 886; 512 U.S. 753; 491 N.W.2d 882; 457 U.S. 702
Cited Statutes: None
Date: 02/01/2005

  Commercial speech is generally defined as “speech that does no more than propose a commercial transaction.”  United States v. United Foods, Inc., 533 U.S. 405, 409 (2001).  Stated another way, “[c]ommercial speech includes any speech for the purpose of trade or to induce the sale of any goods or services.”  State v. Holmberg, 545 N.W.2d 65, 70 (Minn. Ct. App. 1996), cited in In re Stark, No. C4-98-585 (Minn. Ct. App. 1998) (unpublished opinion).  Thus, commercial speech is an expression related solely to the economic interests of the speaker and its audience.  State ex rel Humphrey v. Casino Mktg. Group, Inc., 491 N.W.2d 882, 886 (Minn. 1992), cited in Stark.

Advertising is considered commercial speech, and the Supreme Court has routinely invalidated restrictions geared toward depriving consumers of accurate information about products and services legally offered for sale.  See generally Ann. K. Wooster, Annotation, Protection of Commercial Speech Under First Amendment Supreme Court Cases, 164 A.L.R. Fed. 1 (2004).  In the United Foods case, for example, the Court stated that commercial advertisements are constitutionally protected, explaining that “[t]he First Amendment’s concern for commercial speech is based on the informational function of advertising.”  533 U.S. at 426 (quoting Central Hudson Gas & Elec. Co. v. Pub. Serv. Comm’n, 447 U.S. 557, 563 (1980)); see also Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173 (1999) (determining that the FCC’s prohibition on broadcasting […]

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