The First Amendment and Advertising

1
The First Amendment and Advertising

• The Supreme Court and Tobacco, Lawyer and Liquor
  Advertising
• By DJ Ford

2
The Central Hudson Test

• The Court established a four-prong test in
  Central Hudson Gas Electric Corp. v. Public
  Service Commission of NY, 477 U.S. 564 (1980)
• Why? There was a state regulation banning
  electric utilities from using all ads promoting
  the use of electricity.
• The Court struck down this ban, saying the
  blanket ban violated the First Amendment

3
The Prongs

• To be upheld the ad restriction must pass The
  Courts test, which entails, in the following
  order
• Determining whether the speech is protected by
  the First Amendment.
• Determining whether the government interest is
  substantial.
• Determining whether the law advances that
  interest
• Determining if the law is more extensive than
  necessary

4
Lawyer Advertising

• Bates v. State Bar of Arizona 433 U.S. 350
  (1977)
• The Court upheld a ban on price advertising for
  complex legal services
• Misleading because lawyers can NOT put a
  definitive tag how much its going to cost.
• Divorce proceedings, defamation suits, etc.
• Uncontested divorce proceeding price may be
  advertised. Why? It may have a fixed price.

5
Lawyer Advertising

• In-person advertising also prohibited
• Person is distraught divorce, medical
  malpractice
• Privacy is invaded
• Coercion, intimidation
• May demand an immediate response

6
Alcohol Advertising

• The government always passes the second prong of
  the test it does have a substantial interest in
  curbing consumption of alcohol.
• But remember, the law must pass prong 1 to get
  to prong 2, and then pass 3 and 4 as well.

7
Alcohol Advertising

• Liquormart, Inc. v. Rhode Island 517 U.S. 484
  (1996)
• Struck down an RI ban on alcohol price
  advertising
• The state failed to prove that without the ban,
  alcohol sales and consumption would increase
• Rubin v. Coors Brewing Co. - 514 U.S. 476 (1995)
• Struck down a ban on providing alcohol content on
  the label
• Failed prong 3

8
Tobacco Advertising

• Lorillard Tobacco Co v. Reilly 527 U.S. 173
  (1999)
• Struck down a MA law prohibiting outdoor tobacco
  ads within a 1,000 ft. radius of all schools or
  playgrounds
• Failed prong 4
• The Court struck down another MA law prohibiting
  indoor tobacco ads lower than five feet from the
  ground. Failed both 3 and 4.

9
Justice O Connor

• Not all children are less than five feet tall,
  and those that are certainly have the ability to
  look up and take in their surroundings.