Citation. 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).
Brief Fact Summary.
Plaintiff challenged ban on electricity advertising, arguing it violated the First Amendment.
Synopsis of Rule of Law.
In commercial speech cases, we must determine whether the expression is protected by the First Amendment. A four-part analysis applies. The speech must, at least, concern lawful activity and not be misleading. The speech must then concern a substantial government interest. Next, we must determine whether the regulation directly advances the governmental interest assert, and whether it is not more extensive than necessary to serve said interest.
Defendant ordered electric utilities in New York to cease all advertising that promoted the use of electricity due to a fuel shortage. Once the fuel shortage eased, Defendant requested comments from the public on its proposal to continue the ban. Plaintiff opposed the ban and filed suit, arguing it restrained commercial speech in violation of the First and 14th Amendment.
Whether the ban on electricity advertising violates the First and 14th Amendments.
The Court’s decision today fails to give due deference to the subordinate position of commercial speech. In doing so, the Court is returning to the begone Lochner era, during which this Court would strike down economic regulations by a state based on the Court’s own notions. The ban before us today is more akin to an economic regulation to which virtually complete deference should be accorded by this Court.
I agree the ban is inconsistent with the First and 14th Amendments. I concur, however, because I believe the test now evolved and applied by the Court is not consistent with our prior cases and does not provide adequate protection for truthful, non-misleading, non-coercive commercial speech.
The Court’s definition of commercial speech is too broad. It is important that the concept of commercial speech not be defined too broadly because it is afforded less constitutional protection than other forms of speech.
Our country’s dependence on energy resources is beyond our control. No one can doubt the importance of energy consumption. Therefore, the state interest asserted is substantial. Defendant has not demonstrated, however, that its interest in conservation can be adequately protected by limited regulation on commercial expression. As such, we cannot approve the complete suppression of Plaintiff’s commercial speech, i.e. the advertising. Judgement reversed.