The First Amendment states that "Congress shall make no law ... abridging the freedom of speech," U.S. Const. amend. I, and applies to the States through the Due Process Clause of the Fourteenth Amendment, see Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). Dwyer v. Cappell, 762 F. 3d 275 (3rd Cir. 2014).
[C]ommercial speech [is] "entitled to the protection of the First Amendment, albeit to protection somewhat less extensive than that afforded 'noncommercial speech.'" Zauderer, 471 U.S. at 637, 105 S.Ct. 2265. "The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading, or that proposes an illegal transaction. Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest." Id. at 638, 105 S.Ct. 2265 (citing Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343) (other internal citations omitted). Safelite Group, Inc. v. Jepsen, 764 F. 3d 258 (2nd Cir. 2014).
The regulation of commercial speech is subject to different levels of review, depending on the nature of the law. In Central Hudson, the Court established that a restriction on commercial speech is subject to intermediate scrutiny, that is, a determination of whether the restriction directly advances a substantial governmental interest and is not overly restrictive. 447 U.S. at 564, 100 S.Ct. 2343. In Zauderer, however, the Court created an exception that an informational disclosure law — as opposed to a prohibition on speech — was subject to rational review, that is, a determination of whether the required disclosure is reasonably related to the state's interest. 471 U.S. at 651, 105 S.Ct. 2265. Safelite Group, Inc. v. Jepsen, ibid.
[P]rohibitions of professional speech are constitutional only if they directly advance the State's interest in protecting its citizens from harmful or ineffective professional practices and are no more extensive than necessary to serve that interest. King v. Governor of the State of New Jersey, 767 F. 3d 216 (3rd Cir. 2014).
THIS CASEBOOK contains a selection of 35 U. S. Court of Appeals decisions that analyze and interpret the doctrine of commercial speech under the First Amendment. The selection of decisions spans from 2012 to the date of publication.