Exploring the Constitutionality of Commercial Speech: A View of Tobacco Advertising

By Lee, Hyo-Seong | Communications and the Law, September 2001 | Go to article overview
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Exploring the Constitutionality of Commercial Speech: A View of Tobacco Advertising

Lee, Hyo-Seong, Communications and the Law

Advocates of tobacco advertising argue that it is abnormal that while the First Amendment has been construed to provide full constitutional protection to the most hateful racist speech,(1) and even to the direct advocacy of criminal conduct,(2) the protection of the promotion of the adult use of tobacco products is denied.(3) On the other hand, opponents of tobacco advertising argue that commercial speech including tobacco advertising does not advance any ideas worth preserving and consequently deserves less protection than other forms of speech.(4)

Amid the controversies, it often is not entirely clear, under commercial speech doctrine, how the Supreme Court would rule on the constitutionality of the various regulations of tobacco advertising and tobacco advertising itself. While the Court often has indicated that commercial speech receives a lower level of protection than other categories of expression,(5) it has made clear that the level of protection it does receive nevertheless is substantial.(6)

Keeping in mind the fluctuations of tobacco issues, this article attempts to further understanding of the constitutionality surrounding tobacco advertising and its regulations. The following section proposes the theoretical framework for this article by exploring the commercial speech--related jurisprudence and its relationship to the First Amendment theory. More specifically, the third section examines the constitutional status of tobacco advertising and its regulations. Based on the analyses of various jurisprudence, this article attempts to find a solution to the controversies surrounding the constitutionality of tobacco advertising and its regulation in terms of the First Amendment premise.


Defined by the U.S. Supreme Court as expression that does "no more than propose a commercial transaction" and best illustrated by the product or service advertisements we read, see, or hear each day,(7) commercial speech traditionally has been entitled to less protection under the First Amendment than other types of speech.(8) It is only recently that the Court even has offered it limited protection.

A. Early Restrictions on Commercial Messages

In Valentine v. Chrestensen,(9) the Supreme Court upheld the city's ban on the distribution of a handbill, classifying it as commercial in nature and therefore outside the First Amendment's protection.(10) The decision appeared to rest on the assumptions that the First Amendment's coverage is limited to expression of public interest and that speech motivated by a desire for private profit does not qualify for the public interest classification. As for how future courts should go about distinguishing commercial expression from its non-commercial counterpart, Chrestensen offered minimal guidance.(11) The Court indirectly defined commercial speech by alluding to the pursuit of a gainful business as a characteristic of a commercial message.(12)

After Chrestensen, the Court again refused to extend First Amendment protection to commercial messages. In Breard v. Alexandria,(13) the Court upheld the conviction of a magazine salesman for violating an ordinance that prohibited door-to-door sales without the consent of the property owner. The Court classified the salesman's activity as commercial and hence not protected by the First Amendment.(14) Breard shared Chrestensen's approach of basing the commercial/non-commercial distinction on the speaker's economic motive. Although seemingly simple enough at first glance, such a test for distinguishing between protected and unprotected speech already was showing signs of being less than satisfactory.(15) For instance, the prohibited solicitation in Breard involved periodicals that contained expression of public interest. The Court conceded that the sale of the periodicals does not put them beyond the protection of the First Amendment but concluded that the door-to-door salesman's activities brings into the transaction a commercial feature justifying the denial of First Amendment protection to him.

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