Professional Advertising and Promotion
When Warren E. Burger, former Chief Justice of the United States, died in late June 1995, one of the legacies recounted by the news media in his obituary was that, during his 17-year tenure, the Supreme Court of the United States had recognized that advertising and other forms of commercial speech had some First Amendment protection. Burger served as Chief Justice from 1969 to 1986. During his term, the Court handed down Pittsburgh Press ( 1973), Bigelow ( 1975), Virginia State Board of Pharmacy ( 1976), Linmark Associates ( 1977), Hugh Carey ( 1977), Bates ( 1977), First National Bank of Boston ( 1978), Central Hudson ( 1980), Bolger ( 1983), and Posadas ( 1986). This is certainly an impressive record, but it is marred by glaring inconsistencies in the manner in which commercial speech has been treated. There is no better illustration of the Court's contradictory approach than in the cases dealing with professional advertising and promotion. As is seen here, the inconsistencies have continued with the Rehnquist Court, despite the fact that only three of the justices on the Court when Burger retired are still on it. This chapter looks first at advertising by media corporations, followed by nonmedia corporations, and then professionals. Finally, it looks at advertising for products and services.
Overall, media corporations have probably made the strongest headway in obtaining protection for commercial speech, although they do not have a perfect win-loss record. Of the categories considered here, nonmedia corporations have received the most attention from the courts, especially the Supreme Court of the United States. Nonmedia corporations have made some progress despite some surprising setbacks, but the limits of First Amendment protection for commercial speech have been tested the most by professionals, particularly lawyers, who have had mixed results. The general trend continues to be somewhat broader protection for commercial speech, but with twists and turns that often defy logic.