The First Amendment and Commercial/Economic Speech

Although the First Amendment makes no distinction between types of speech, courts have consistently offered so-called “commercial speech” less protection than non-commercial speech. Under the Central Hudson test, courts balance the interests of regulators against the interests of those engaged in commercial speech. These interests can lead to limitations on how pharmaceutical companies communicate information about lawful treatments with patients, doctors, and insurance companies; how lawful products like tobacco or liquor are advertised; and how businesses express themselves. What limitations should courts permit government to impose on commercial speech, if any? Should Central Hudson be reconsidered? And what about occupational speech? Should “commercial speech-level restrictions” be imposed on individuals who offer advice in the fields of interior design, investing, or parenting, for example? How or should concerns about economic liberty be factored in? And do state constitutions provide broader protections for commercial speech than the federal Constitution? If so, should cases like Nike vs. Kasky be overturned?
Bradley Benbrook, Founding Partner, Benbrook Law Group
Erik Jaffe, Law Office of Erik Jaffe
Amanda Shanor, Yale Law PhD Candidate
Moderator: Christina Sandefur, Executive Vice President, Goldwater Institute
Introduction: Lisa Ezell, Vice President & Director of Lawyers Chapters, The Federalist Society