Public Interest Information as Commercial Speech
Chapter 2 traced the somewhat erratic course the Supreme Court of the United States has followed to create and implement those tests that speakers, government regulators, and lower courts should employ to gauge the degree of constitutional protection afforded "pure" commercial speech. While protecting noncommercial speech about public issues from regulation in all but truly unusual situations, the Court has often treated pure commercial speech as a First Amendment second-class citizen. In most circumstances, the Court has disallowed regulation (a) only when the governmental interest asserted as the basis for regulation is insubstantial, or (b) there are other means less restrictive of speech that reasonably enable the government to achieve its ends.
In so doing, however, the Court has held unequivocally that the mere fact that speakers have paid for the space or time to publish their speech does not automatically define such speech as commercial speech for First Amendment purposes. This differentiation between paid-for speech and true commercial speech has created a series of commercial speech-related issues that are the focus of this chapter. These are: (a) What degree of constitutional protection should be accorded paid-for speech that deals with matters of general public interest? (b) How should courts define paid-for speech that contains a mixture of commercial and noncommercial messages, or that may be commercial speech in disguise? (c) Are there categories of commercial speech that merit more or less constitutional protection than other kinds of commercial speech? (d) How does the second-class status of commercial speech interact with other legal concepts like defamation or privacy? (e) Are there special problems when the commercial speech involves political advertisements?
Although the answers to these commercial speech-related questions obviously are significant to those in advertising, they are equally, if not more,