The First Amendment

The First Amendment of the United States Constitution protects the people from the government’s abridgment of the freedom of speech.^[1] As discussed in Chapter 2, the original purpose of the First Amendment was to protect core speech such as political and religious communications. This type of speech is the most strictly protected. In 1976, the Supreme Court confirmed that commercial speech deserves First Amendment protection.^[2] Commercial speech is defined as the proposal of a commercial transaction,^[3] and includes advertising,^[4] labeling,^[5] and other types of commercial solicitations such as brochures.^[6]

The 1976 case that served as the basis for the commercial speech doctrine, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, stemmed from a state trying to use its licensing authority (discussed further in Chapter 9) to prohibit the dissemination of prescription drug price information in the state.^[2] The Court struck down the ban, stating that consumers’ interest in the free flow of commercial information, especially the poor, sick, and aged consumers in this case, “may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.”^[8] The Court found that commercial speech must be protected in order to enable economic decisions to be “intelligent and well informed” in our “predominantly free enterprise economy.”^[9] Although the Court protects commercial speech, it explained that the government may regulate false, deceptive, and misleading speech.^[2]

The Court determined that commercial speech should be protected to an intermediate degree, which is less than the strict scrutiny bestowed on restrictions of core speech. In 1980, the Court created a four-pronged test called the Central Hudson test, named after the case in which it was created.^[11] Under this test, courts first must “determine whether the expression is protected by the

First Amendment,” which for commercial speech means it “must concern lawful activity and not be misleading.”^[12] Second, the court asks “whether the asserted governmental interest is substantial. If both inquiries yield positive answers, [it] must determine whether the regulation directly advances the governmental interest asserted,” and fourth, whether or not the restriction on speech is “more extensive than is necessary to serve that interest.”^[11] No commercial speech restriction has passed this test in the Supreme Court since 1995.^[14] The Court has seemed to bestow increasingly stricter protection to commercial speech since the inception of the doctrine.

A pivotal case related to marketing to children was the 2001 case of Lorillard v. Reilly. In this case, the Massachusetts Attorney General promulgated comprehensive regulations governing the advertising and sale of tobacco products in order to address the increased incidence of youth smoking.^[15] The regulation prohibited outdoor tobacco advertisements within a 1,000-foot radius of a school or playground and restricted indoor tobacco advertising from being placed lower than five feet from the floor of a retail establishment located the same distance from schools or playgrounds.^[16] The Supreme Court analyzed the constitutionality of these restrictions on commercial speech under the Central Hudson test.

The parties and the Court agreed that the proposed speech, tobacco advertisements, was protected commercial speech and that the state’s interest in preventing tobacco use by minors was substantial, meeting parts one and two of the test. However, the Court found that the outdoor advertising restrictions failed the fourth prong of the test because their vast reach cut off substantial avenues of communication intended for adults, rendering them more extensive than neces- sary.^[16] This is an important point: although the speech restriction was aimed at protecting children, because it interfered with the ability of tobacco companies to communicate with adults, the Court found it to be unconstitutional. The Court also found that the five-foot height requirement failed both prongs three and four because not all children are less than five feet tall and those who are have the ability to look up to see the signs.^[16] Thus, the Court found that the restriction did not directly advance the government’s interest and was more extensive than necessary.

Most recent commercial speech cases follow a similar course. As in Lorillard v. Reilly, the parties involved generally agree that truthful marketing communications constitute valid commercial speech, thus meeting the first prong of the

Central Hudson test. Further, in the context of public health regulations, courts universally recognize the government’s ability to regulate in order to promote public health, safety, and welfare,^[19] so the court and the parties generally agree that the government’s interest is substantial, thus meeting the second prong of the test. Commercial speech restrictions, therefore, generally fail either or both prongs three and four of the Central Hudson test.^[20] At this juncture, it is unclear whether the government could devise a commercial speech restriction targeting truthful marketing practices that the Court would uphold in the future.

Two related issues need exploring in order to provide the full picture of the commercial speech doctrine as it relates to marketing to children. The first is that the foregoing relies on the existence of truthful advertising. What happens when an ad is false, deceptive, or misleading? The Supreme Court has interpreted the First Amendment to permit the government to regulate such speech, as discussed directly below. The second issue is that a different type of First Amendment analysis is relevant to public schools and this will be discussed below under School-based Marketing.

Recall that under prong one of the Central Hudson test, courts must ask whether the expression is protected by the First Amendment, which for commercial speech means it “must concern lawful activity and not be misleading.”^[21] An example of speech that would not be proposing a legal transaction would be an offer to sell alcohol to minors under 21 years of age, the legal drinking age nationally. This is important because food products are legally purchasable by children. Therefore, the commercial speech directed at them is constitutionally protected. Although the government would have a substantial interest in preventing obesity, diabetes, and unhealthy eating behaviors by restricting food marketing to children, the fact that food marketers have a constitutionally protected right to communicate with children and adults alike would lead the Court to be circumspect of such a restriction.

The government may ban a product,^[22] however, or prohibit its purchase, possession, or use by minors.^[23] These are regulations of conduct, described at greater length in Chapter 9 on state and local control. In some ways, regulating conduct, such as banning products, seems more extreme than banning speech about a product. But this choice was one made by the writers of the United States Constitution. The Supreme Court explained this as follows:

The text of the First Amendment makes clear that the Constitution presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct. That presumption accords with the essential role that the free flow of information plays in a democratic society. As a result, the First Amendment directs that government may not suppress speech as easily as it may suppress conduct, and that speech restrictions cannot be treated as simply another means that the government may use to achieve its ends.^[24]

Thus, while banning food marketing directed at children is constitutionally difficult, governments can prohibit the purchase of certain products by children. This is significant because such a restriction would have the effect of making a proposal of a commercial transaction to a minor for that product unlawful commercial speech. Thus, if the government wanted to restrict speech about a product to children, it could do this if it made the product illegal for a minor to purchase. Such a restriction, however, would be subject to the Central Hudson test to determine if it cuts off more speech than necessary to adults, as in Lorillard v. Reilly.

The second reason why speech might not be protected is if it is misleading. This concept has been fleshed out in subsequent cases and is broader than just the term “misleading.” The Court stated that the First Amendment protects “truthful” advertising;^[25] thus, false statements intending to propose a commercial transaction are not protected. The Court also differentiated among three types of misleading speech: inherently misleading, actually misleading (i.e., proven to be misleading in practice), and potentially misleading.^[25] The first, inherently misleading, is the most nebulous concept of the three. The Court has explained it as speech with no intrinsic meaning,^[27] speech that is inherently likely to deceive,^[28] or speech that conveys no information.^[29] Inherently misleading speech rarely comes up in Supreme Court cases. The second type of misleading speech, actually misleading, is the most straightforward because it requires evidence of deception.^[30] Courts look to the evidentiary record to determine whether people were actually misled or deceived. For both inherently and actually misleading commercial speech, the government may prohibit such speech entirely because it is not considered protected commercial speech. Thus, if the government restricts this speech, this should be upheld under the first prong of the Central Hudson test without a court having to go further to analyze the other prongs. One could envision the argument that it is deceptive to propose a commercial transaction to a young child because the recipient of the information does not have the cognitive capabilities to perceive persuasive intent, but nothing like this has been tested in court.

The third category, potentially misleading speech, is speech that “may be presented in a way that is not deceptive.”^[25] The Court has explained that when speech can be presented in another way that would cure the deception, the government cannot prohibit the speech, but rather can require disclaimers, disclosures, or further explanations to clarify the speech.^[25] Thus, unlike the other two categories above, potentially misleading speech is considered protected by the First Amendment and may not be prohibited. If the government restricts potentially misleading speech, a court must review the remaining three prongs of the Central Hudson test in order to determine whether the challenged restriction on such speech is constitutional.^[33] The Court highly favors additional information or “more speech” rather than speech restrictions or “enforced silence.”^[34] Thus, in most cases without evidence of deception, the Court favors government regulations that require commercial actors to increase their factual disclosures or disclaimers or to provide further explanation to cure the potential deception.^[35]

• [1] U.S. Constitution Amendment I.
• [2] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).
• [3] Board of Trustees v. Fox, 492 U.S. 469 (1989).
• [4] Lorillard Tobacco Co. v. Reilly, 533 US 525Г(2001).
• [5] Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).
• [6] Bolger, 463 US 60 (1983); see also, Cincinnati v. Discovery Network, 507 U.S. 410, 422 (1993).
• [7] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).
• [8] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) at 763-764.
• [9] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976)at 765.
• [10] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).
• [11] Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).
• [12] Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) at 566.
• [13] Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).
• [14] J. L. Pomeranz. No Need to Break New Ground: A Response to the Supreme Court’s Threatto Overhaul the Commercial Speech Doctrine. Loyola of Los Angeles Law Review. 2012;45:389-434.
• [15] Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 533 (2001).
• [16] Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 566 (2001).
• [17] Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 566 (2001).
• [18] Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 566 (2001).
• [19] See e.g., Rubin v. Coors Brewing, 514 U.S. 476, 485 (1995); see also Florida Bar v. Went for It,Inc. 515 U.S. 618, 625 (1995).
• [20] Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011); see also, Thompson v. Western States MedicalCenter, 535 U.S. 357 (2002).
• [21] Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 566 (1980).
• [22] 44 Liquormart, 517 U.S. at 524 (THOMAS, J., concurring in part and concurring injudgment).
• [23] Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 586 (2001) JUSTICE THOMAS, concurring inpart and concurring in the judgment.
• [24] 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 512 (1996).
• [25] In re R. M. J., 455 U.S. 191, 203 (1982).
• [26] In re R. M. J., 455 U.S. 191, 203 (1982).
• [27] Friedman v. Rogers, 440 U.S. 1, 4 (1979).
• [28] Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557,563 (1980) (citingFriedman v. Rogers, 440 U.S. 1, 13, 15-16).
• [29] Friedman v. Rogers, 440 U.S. 1, 12 (1979).
• [30] Peel v. Atty. Registration & Disciplinary Commission, 496 U.S. 91, 100-101 (1990).
• [31] In re R. M. J., 455 U.S. 191, 203 (1982).
• [32] In re R. M. J., 455 U.S. 191, 203 (1982).
• [33] American Academy of Pain Management v. Joseph, 353 F.3d 1099, 1107 (9th Cir. 2004); seealso, Mason v. Florida Bar, 208 F.3d 952, 955 (11th Cir. 2000).
• [34] Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis concurring).
• [35] Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324, (2010); see also, Zaudererv. Office of Disciplinary Counsel, 471 U.S. 626 (1985).