First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In the 1970s, the Court’s treatment of “commercial speech” changed from total nonprotection under the First Amendment to qualified protection. In 1942, the Court had stated that speech concerning commercial transactions is undeserving of First Amendment protection in Valentine v. Chrestensen.1 In Chrestensen, the Court upheld a city ordinance prohibiting distributing on the street “commercial and business advertising matter,” as applied to an exhibitor of a submarine who distributed leaflets describing his submarine on one side and on the other side protesting the city’s refusal of certain docking facilities. The Chrestensen doctrine was limited to expression promoting commercial activities; whether the speaker disseminated his expression for profit or through commercial channels did not subject it to any greater regulation than if he offered it for free.2 The doctrine lasted in this form for decades, until the Court’s approach began shifting in the 1970s.

Relying on the Chrestensen doctrine in a 5-4 decision issued in 1973, the Court sustained the application of a city’s ban on employment discrimination to bar sex-designated employment advertising in a newspaper.3 Suggesting that speech does not lose its constitutional protection simply because it appears in a commercial context, the Court nonetheless described placing want-ads in newspapers as “classic examples of commercial speech,” controlled by Chrestensen because they were devoid of expressions relating to social policy and “did no more than propose a commercial transaction.” But the Court also noted that the advertisements facilitated employment discrimination, which was itself illegal.4

In 1975, the Court overturned a conviction under a state statute that made it illegal for any publication by sale or circulation to encourage or prompt procuring an abortion. The Court held the statute unconstitutional as applied to an editor of a weekly newspaper who published an advertisement announcing the availability of legal and safe abortions in another state and detailing assistance that state residents could get to obtain abortions in the other state.5 Distinguishing Chrestensen, the Court discerned that the advertisements conveyed information of other than a purely commercial nature, that they related to services that were legal in the other jurisdiction, and that the state could not prevent its residents from obtaining abortions in the other state or punish them for doing so.

In 1976, the Court eliminated these distinctions by disclaiming Chrestensen's commercial speech “exception” to the First Amendment as it voided a statute that effectively prohibited licensed pharmacists from advertising prescription drug prices.6 In a suit brought by consumers to protect their right to receive information, the Court held that speech that does no more than propose a commercial transaction is nonetheless of such social value and entitled to protection. Noting that consumers’ interests in receiving factual information about prices may sometimes be even “keener” than their interest in political debate, the Court concluded that price competition and access to information about it serves the public interest.7 The Court ruled that state interests in the ban—protecting professionalism and the quality of prescription goods—were either badly served or not served by the statute.8

Turning from the interests of consumers to receive information to that of advertisers to communicate, the Court in 1977 voided a municipal ordinance that barred displaying “For sale” and “Sold” signs on residential lawns, purportedly to limit “white flight” resulting from a “fear psychology” that developed among White residents following sale of homes to non-Whites. The right of owners to communicate their intention to sell a commodity and the right of potential buyers to receive the message was protected, the Court determined; the community interest could have been achieved by less restrictive means and in any event may not be achieved by restricting the free flow of truthful information.9

Footnotes

1

316 U.S. 52 (1942). See also Breard v. City of Alexandria, 341 U.S. 622 (1951). The doctrine was one of the bases upon which the banning of all commercials for cigarettes from radio and television was upheld. Capital Broad. Co. v. Mitchell, 333 F. Supp. 582 (D.D.C. 1971) (three-judge court), aff’d per curiam, 405 U.S. 1000 (1972).

2

Books that are sold for profit, Smith v. California, 361 U.S. 147, 150 (1959); Ginzburg v. United States, 383 U.S. 463, 474–75 (1966), advertisements dealing with political and social matters which newspapers carry for a fee, N.Y. Times Co. v. Sullivan, 376 U.S. 254, 265–66 (1964), and motion pictures which are exhibited for an admission fee, United States v. Paramount Pictures, 334 U.S. 131, 166 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501–02 (1952), were all during this period held entitled to full First Amendment protection regardless of the commercial element involved.

3

Pittsburgh Press Co. v. Comm’n on Hum. Rels., 413 U.S. 376 (1973).

4

Id. at 385, 389. The Court continues to hold that government may ban commercial speech related to illegal activity. Cent. Hudson Gas & Elec. Corp. v. PSC, 447 U.S. 557, 563–64 (1980).

5

Bigelow v. Virginia, 421 U.S. 809 (1975).

6

Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976).

7

Id. at 763–64.

8

Id. at 766–70.

9

Linmark Assocs. v. Twp. of Willingboro, 431 U.S. 85 (1977).