Commercial speech
General rule: more often than not, commercial speech cannot be regulated
VA State Board of Pharmacy v. VA Citizens Consumer Council
the free flow of commercial information is indispensable
"speech does not lose its First Amendment protection because money is spent to project it"
Advertised prescription drug prices
Some forms of commercial speech regulation are surely permissible (ex. untruthful speech)
What is "commercial"?
Four types of regulation (Central Hudson)
Not protected (gov't can regulate)
the prohibition of false and deceptive advertising
laws that outlaw advertising of illegal activities (Pittsburgh Press Co. v. Pittsburgh Commn. on Human Relations)
Sometimes protected
the government may prohibit true advertising that inherently risks becoming false or deceptive
laws that limit commercial advertising to achieve other goals, such as enhancing the image of lawyers, decreasing consumption of alcohol or tobacco products, preventing panic selling of houses in neighborhoods, or decreasing gambling. The largest number of cases fit into this category and do not follow a consistent path.
Bolger v. Youngs Drug
mailing unsolicited information on contraceptives
Rule: Look at multiple factors: proposals to engage in commercial transactions, economic motivation, advertisements, reference to a specific product
Sorrell v. IMS Health
Facts
Holding
Pharmacies sell data to companies who write reports and sell it to pharmaceutical companies to target marketing
Law that made selling that data to pharmaceutical companies illegal
Content, speaker, and viewpoint based discrimination
Insufficient justifications: (1) protect medical privacy, (2) public health and health care costs
Central Hudson rule: must satisfy all for the government to regulate the speech
(2) Is the government’s restriction justified by a substantial government interest?
(1) Does the speech advertise illegal activities or constitute false or deceptive advertising that is unprotected by the First Amendment?
(3) Does the law directly advance the government’s interest?
(4) Is the regulation of speech no more extensive than necessary to achieve the government’s interest? (however, SUNY v. Fox held that this is not always necessary)
Ohralik, Primus, and Shapero taken together establish the proposition that states may prohibit attorney in-person solicitation of clients for profit