This is current Supreme Court doctrine on commercial speech:
While commercial speech is entitled to First Amendment protection, the Court has clearly held that it is not wholly undifferentiable from other forms of expression; it has remarked on the commonsense differences between speech that does no more than propose a commercial transaction and other varieties.17 The Court has developed a four-pronged test to measure the validity of restraints upon commercial expression.
Under the first prong of the test as originally formulated, certain commercial speech is not entitled to protection; the informational function of advertising is the First Amendment concern and if it does not accurately inform the public about lawful activity, it can be suppressed.18
Second, if the speech is protected, the interest of the government in regulating and limiting it must be assessed. The State must assert a substantial interest to be achieved by restrictions on commercial speech.19
Third, the restriction cannot be sustained if it provides only ineffective or remote support for the asserted purpose.20
Instead, the regulation must ``directly advance'' the governmental interest. The Court resolves this issue with reference to aggregate effects, and does not limit its consideration to effects on the challenging litigant.31
Fourth, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restriction cannot survive.21 The Court has rejected the idea that a ``least restrictive means'' test is required. Instead, what is now required is a ``reasonable fit'' between means and ends, with the means ``narrowly tailored to achieve the desired objective.''22
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In addition:
Commercial speech is viewed by the Court as usually hardier than other speech; because advertising is the sine qua non of commercial profits, it is less likely to be chilled by regulation. Thus, the difference inheres in both the nature of the speech and the nature of the governmental interest. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771-72 n.24 (1976); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-56 (1978). It is, of course, important to develop distinctions between commercial speech and other speech for purposes of determining when broader regulation is permissible. The Court's definitional statements have been general, referring to commercial speech as that ``proposing a commercial transaction,'' Ohralik v. Ohio State Bar Ass'n, supra, or as ``expression related solely to the economic interests of the speaker and its audience.'' Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 561 (1980). It has simply viewed as noncommercial the advertising of views on public policy that would inhere to the economic benefit of the speaker. Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530 (1980). So too, the Court has refused to treat as commercial speech charitable solicitation undertaken by professional fundraisers, characterizing the commercial component as ``inextricably intertwined with otherwise fully protected speech.'' Riley v. National Fed'n of the Blind, 487 U.S. 781, 796 (1988). By contrast, a mixing of home economics information with a sales pitch at a ``Tupperware'' party did not remove the transaction from commercial speech. Board of Trustees v. Fox, 492 U.S. 469 (1989).
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As commonly understood, taking a position on legislation, even if one has a financial interest, is not commercial speech. In addition, even the regulation of commercial speech is supposed to be narrowly tailored to achieve a governmental purpose. The governmental interest must be substantial, it must be directly advanced by the regulation, and there must be a reasonable fit between means and ends. I am not sure that McCain- Feingold qualifies even under those tests. |
