Commercial Speech Doctrine
In 1942 a unanimous Supreme Court, in a brief opinion, upheld the conviction of an entrepreneur who violated a sanitary code provision banning the distribution of a handbill. The advertisement promoted the tour of a submarine for a fee. On the reverse side of the handbill was a protest against New York City's denial of wharfage facilities for the exhibition.
The Court dismissed the political protest message as a mere appendage designed to evade the ordinance. With reference to the advertisement for the submarine exhibit the Court said:
This court has unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in these public thoroughfares. We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.1
A distinguished scholar, in an influential piece on commercial advertising, stated that the Court, "without citing precedent, historical evidence, or policy considerations,. . . effectively read commercial speech out of the first amendment."2
Additional evidence for a commercial speech exception to the First Amendment was developed in Breard v. Alexandria,3 in which the Court affirmed a conviction for violation of an ordinance forbidding door-to-door soliciting of magazine subscriptions without prior consent of the homeowner. The