The Bitter Truth - Commercial Speech and Public Relations   Back to Home Page
Nike Vs.Kasky Case
Chilling Effect
The Future


The Commercial Speech Doctrine has had a long and murky life, with a corps of dedicated divisions on each side of a controversial issue. Its ambiguity has bothered many First Amendment proponents for years.

In the most recent contest to solidify the meaning of the doctrine, the case of Nike v. Kasky, both sides showed in full force for a heated and prolonged debate. But with all of the rhetoric involved, the court chose not to play and the case was settled out of court, leaving another strange curve in the twisted road of Commercial Speech rights.

The impacts on businesses, the media and every activist in the state of California is huge.

Here we take a look at the big picture, and make some assumptions for the future of social reporting and public debate.


Defining the Commercial Speech Doctrine

Government regulated speech

Commercial Speech is loosely defined (or lack thereof) as governmentally regulated speech for corporations or businesses. It is that delicate line between advertising and social reporting. Marketing and public discourse. It is the public relations firms' worst enemy when strictly limited. It can also be their best friend when ultimately protected. And that is the question that our legal entity has sought to answer since 1939.


Early cases started idea of commercial speech

The United States Supreme Court first set the ground work for the doctrine when they ruled that Clara Schneider, a Jehovah's Witness, was protected in her efforts to promote religion door-to-door under the First Amendment. But the court noted that “We are not to be taken as holding that commercial soliciting and canvassing may not be subjected to such regulation. . .” (Moore, Farra & Collins, 1998).

Three years later, a New York man, F.J. Chrestensen, decided the best way to avoid getting ticketed for sanitation violations when he dumped hundreds of his flyers advertising submarine tours on the New York waterfront, was to add a little political speech on the back, thereby making his efforts protected under a code that stated canvassing is OK if it isn't advertising. The Supreme Court disagreed.

They stated "We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising" (Oliva, 2003). Thus, the Commercial Speech Doctrine was born. The clear rejection of “purely commercial advertising” as a constitutionally protected category of speech provided the first definition.The court would later re-visit the issue in several cases that set precedents. All progressively leaning toward further protection of Commercial Speech under the First Amendment. And in 1980 they developed a four-part test for determining whether certain speech is protected.


The four-step test for determining whether speech is commercial

The case was Central Hudson Gas & Electric Corp. v. Public Service Commission and the test helped to further clarify the doctrine.The Court determined a government restriction on advertising or other commercial speech is permissible only on a showing that:

  1. The advertising is misleading
  2. The government interest in regulation is substantial
  3. The regulation directly advances that interest
  4. The regulation is not more extensive than necessary

But the Court continued to zig-zag in decision-making that seemed to further cloud the already murky understanding of what is and what isn't constitutionally protected speech.


Far-reaching effects of doctrine

The impacts of Commercial speech are far-reaching. It has applied to a number of differing scenarios in the marketplace. Some of these include:

  • Medical Advertising - The court ruled in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. that pharmacists could indeed advertise their prices. Tobacco Advertising - In 2001, the Court ruled that comprehensive Massachusetts restrictions on tobacco advertising were unconstitutional under the Central Hudson test.Liquor Advertising - In 44 Liquormart, Inc. v. Rhode Island the Court struck down a law that outlawed advertising prices for liquor.
  • Healthcare Advertising - The court ruled that direct mailers advertising abortion services were protected under the First Amendment, and that just because the ads contained commercial aspects, they did not negate all First Amendment guarantees.

In today's marketplace, where consumers are concerned about how companies conduct their business socially and environmentally, the doctrine now holds new ramifications on political and public debate.