Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Advertising Is Protected by the First Amendment
The question is often asked: Does the First Amendment protect advertisements? Advertising is indeed protected by the First Amendment of the U.S. Constitution. However, advertising or "commercial speech" enjoys somewhat less First Amendment protection from governmental encroachment than other types of speech. The Federal Trade Commission (FTC), for example, may regulate speech that is found to be "deceptive." And the FTC keeps stepping up the types of commercial speech it regulates. Moreover, it uses a variety of tools to do so, but that is a discussion for another article. For a discussion of how the Supreme Court essentially `rewrote' the First Amendment in 1947 click here.
Under the landmark U.S. Supreme Court decision, Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, No. 79-565, Supreme Court of the United States, 447 U.S. 557; 100 S. Ct. 2343; 1980 U.S. LEXIS 48; 65 L. Ed. 2d 341; 6 Media L. Rep. 1497; 34 P.U.R.4th 178, June 20, 1980, a state must justify restrictions on truthful, nonmisleading commercial speech by demonstrating that its actions "directly advance" a substantial state interest and are no more extensive than necessary to serve that interest. This is the so-called Central Hudson Test.
Commercial speech now clearly has prominent place in the rights protected by the First Amendment. A 1993 Supreme Court opinion summarized the general principles underlying the protection of commercial speech:
"The commercial market place, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment." (Edenfield v. Fane, 123 L. Ed. 2d 543, 113 S. Ct. 1792, 1798 (1993).)
At one time, purely commercial advertisements were considered to be outside the First Amendment's protection. (See Valentine v. Chrestensen, 316 U.S. 52, 54, 86 L. Ed. 1262, 62 S. Ct. 920 (1942). That case, which was overruled, said the Constitution imposes no restraint on the government as to the regulation of "purely commercial advertising".
While the U.S. Supreme Court has often acknowledged this constitutional protection, the Supreme Court's decisions have recognized the "'common sense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." (Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-56, 56 L. Ed. 2d 444, 98 S. Ct. 1912 (1978) (citing Virginia Pharmacy Bd. v. Citizens Consumer Council, 425 U.S. 748, 771 n.24, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976)).
These distinctions have led the Court to conclude that "the Constitution . . . affords a lesser protection to commercial speech than to other constitutionally guaranteed expression." U.S. v. Edge Broadcasting Co., 125 L. Ed. 2d 345, 61 U.S.L.W. 4759, 4761 (1993) (citing Board of Trustees v. Fox, 492 U.S. 469, 477, 106 L. Ed. 2d 388, 109 S. Ct. 3028 (1989), Central Hudson Gas & Electric Corp. v. Public Service Com., 447 U.S. 557, 563, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980), and Ohralik, 436 U.S. at 456)).
In Central Hudson, the Supreme Court set out the important four-part test for assessing government restrictions on commercial speech:
"[First] . . . [the commercial speech] at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest."
This four-part analysis endured to this day as the constitutional benchmark in commercial speech cases.
In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, the U.S. Supreme Court held that "the Twenty-first Amendment does not qualify the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment. The Twenty-first Amendment, therefore, cannot save Rhode Island's ban on liquor price advertising."
More Information Below
Supreme Court Essentially `Rewrote'
the First Amendment in 1947
In any analysis of the First Amendment, it is important to note the profound impact that the Supreme Court has had on this all-important right. In the `landmark' 1947 case - Everson v. Board of Education of the Township of Ewing - the High Court engrafted a metaphor - "separation of church and state" onto the First Amendment. This non-constitutional phrase came from a letter that Thomas Jefferson wrote to the Danbury Baptists in 1802. That letter contained the metaphor, "a wall of separation between Church & State." While Jefferson clearly intended this phrase, and the rest of his letters and other writings on the subject, to protect religious principles in the public square, the Supreme Court in Everson only quoted eight words from the letter, thus taking Jefferson's words out of context. The full text of the paragraph in Jefferson's letter containing those words are as follows:
"Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should `make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties."
As you can see, this phrase - "separation of church and state" - does not appear in the First Amendment - or anywhere else in the U.S. Constitution, for that matter. Nevertheless, it has been said so often, by so many, in the media and elsewhere, that it's likely that a majority of Americans today believe that this non-constitutional phrase is part of the First Amendment. It isn't. So, although the First Amendment was actually written in 1789, for all intents and purposes, the Supreme Court has made 1947 the date of origin for that portion of First Amendment that states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". Let's just hope that some future Court doesn't find another interesting metaphor - perhaps in someone's email - and engraft that into one of the other clauses of the First Amendment.
The following section includes the full-text, or excerpted portions, of articles on Advertising and the First Amendment which originally appeared in Advertising Compliance Service:
- Article #1: Advertising and First Amendment: Rudy Giuliani and Bus Ads.
- Article #2: Advertising and First Amendment: Court Rules on Commercial Advertising or Promotion Definition under Lanham Act.
- Article #3: Advertising and the First Amendment: Mastercard Sues Ralph Nader Over Priceless Truth Ad for Alleged Infringement.
- Article #4: Advertising and the First Amendment: Hyperlinks, Mouseover Text and Metatags.
- Article #5: Auto Insurers Attack NY Insurance Law Using First Amendment.
Advertising Law-Related Articles
- "12 Key Advertising-Related Laws You Should Know"
- This article examines 12 key advertising-related laws that you should know about before you review your ads to make sure your ads don't run afoul of these laws.
- "10 Things to Do So Your Ads Comply With Advertising Laws"
- This article discusses 10 key areas you should look at when you're reviewing your advertising to determine whether it's in compliance with advertising law's many requirements.
- "10 Tactics to Use So Your Ads Comply with Advertising Laws"
- This article presents 10 tactics you could use to help your ads comply with the many laws, rules, regulations and guidelines that may affect your advertisements.
- "10 Major Advertising Law-Related Concepts"
- This article is a useful review of 10 key areas you should look at when you're reviewing your advertising to determine whether it's in compliance with the numerous laws, rules, regulations and guidelines that may affect your ads.