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Copyright (c) 2005 Lawrence Erlbaum Associates, Inc.
Communication Law and Policy
Autumn, 2005
10 Comm. L. & Pol'y 383
LENGTH: 22996 words
ARTICLE: NIKE V. KASKY AND THE RUNNING-BUT-GOING-NOWHERE COMMERCIAL SPEECH DEBATE
NAME: SAMUEL A. TERILLI *
BIO:
* Assistant professor, School of Communication, University of Miami; partner, Ford & Harrison LLP.
SUMMARY:
... As lawyers, scholars, advertisers and public relations specialists waited in June 2003 for the Supreme Court of the
United States in Nike v. Kaskyto clarify, dispose of, or further confuse commercial speech as a doctrine or category of
speech under the First Amendment, the Court dismissed certiorari as improvidently granted. The case represented a
strong clash of free speech values: In one corner, the Court had Nike and its advertising and public relations campaign
responding to critics of its labor and business practices; and, in the other corner, the Court had Marc Kasky and his
lawsuit alleging Nike's responses amounted to false and misleading attempts to sway consumers of running shoes and
thus were grounds under California law for damages, court-ordered corrective advertising and other remedies. ... The
Commission's order restricts only commercial speech, that is, expression related solely to the economic interests of the
speaker and its audience. ... Having said over a decade ago that the test for identifying commercial speech' is whether it
proposes a commercial transaction ( Bd. ... The expression of a commercial idea or fact in an advertisement is a questionable basis for regulation if there is no consummated, proposed or intended transaction to which an actual injury
could be attributed. ...
HIGHLIGHT: The lawsuit filed by Marc Kasky against Nike illustrates the dangers posed by Supreme Court decisions
defining "commercial speech" as a category deserving of some, but not full, First Amendment protection. The category
is ill-defined and may be safely abandoned without hampering the regulation of commercial activity. Recent decisions
have again shown the path to regulating expressive conduct without violating the First Amendment, and those lessons
should be applied in the context of commerce, requiring where expression is at issue satisfaction of either intermediate
or strict scrutiny, as appropriate given the purpose of the statute, and sufficient evidence of the underlying offense, including the requisite intent.
TEXT:
[*383] As lawyers, scholars, advertisers and public relations specialists waited in June 2003 for the Supreme Court of
the United States in Nike v. Kasky n1 to clarify, dispose of, or further confuse commercial [*384] speech as a doctrine or category of speech under the First Amendment, the Court dismissed certiorari as improvidently granted. The
case represented a strong clash of free speech values: In one corner, the Court had Nike and its advertising and public
relations campaign responding to critics of its labor and business practices; and, in the other corner, the Court had Marc
Kasky and his lawsuit alleging Nike's responses amounted to false and misleading attempts to sway consumers of running shoes and thus were grounds under California law for damages, court-ordered corrective advertising and other
remedies. n2
Had Kasky and Nike been opposing political candidates, the lawsuit would have undeniably implicated fundamental free speech rights, but Kasky sidestepped these rights by attacking Nike's speech as "commercial speech," n3 a form
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of expression afforded only diluted First Amendment protection by the courts. n4 Kasky argued Nike was just selling
shoes through false responses to its critics, though not one advertisement at issue in the case offered any items for sale.
n5
Nike argued it was engaging in debate -- a public debate begun [*385] by its critics -- though clearly Nike was in
the business of maintaining its image and selling products. n6 The question thus presented asked whether a litigant
could use the courts to suppress, punish and alter the speech of another by relegating that speech to the disfavored
commercial speech category.
By sending the case back to the California state courts, the Supreme Court left unresolved whether Nike, as a
commercial actor, could engage in public debate regarding its business practices without risking state-imposed or facilitated punishment of expression. Nike ultimately settled in September 2003 by agreeing to contribute $ 1.5 million to the
Fair Labor Association (FLA) for programs promoting education and economic opportunity among workers. n7 In return, Kasky and his supporters dropped the case. Some were dismayed that this left the legal issues unresolved and a
few felt the payment was no more than a cynical ploy because Nike and other manufacturers held several seats on, and a
degree of control over, the FLA board of directors. n8 The possibility remained that the settlement was simply a means
to stem legal expenses for both sides.
Whatever the explanation behind or evaluation of the settlement, the episode underscores the need to re-examine
the categorical treatment of commercial speech. Confusion among the courts, uncertainty [*386] in the marketplace
and the fact that there was litigation such as Nike v. Kasky demonstrate the absence of any meaningful consensus regarding what is or is not commercial speech or how it ought to be treated. On one end of the spectrum, courts have held
certain issue-oriented advertisements to be non-commercial and eligible for traditional First Amendment analyses. n9
On the other end, courts have examined advertisements that merely communicated prices, product quality, or terms and
have found those generally closer to commercial or other transactions government typically would regulate. n10 In between, there remains soft, uncertain ground and multipart balancing tests created by courts to attempt to bring order to
the inherently disordered nature of speech and commerce. In this legal marshland, the commercial speech doctrine has
become a linguistic quagmire for speakers with commercial interests and for speech that may or may not be deemed
commercial. n11
The litigation in Nike v. Kasky demonstrated the danger as well as the difficulty of trying to distinguish commercial
speech from other speech. In a contentious public debate with policy and commercial overtones, one man's cynical manipulation of consumers may be another's speech about ideas, politics or social mores. The law and categorical treatment of commercial speech is a quagmire because there is no consensus about what distinguishes this speech from other
speech or whether the distinction, even if defined, should affect the constitutional stature of the speech. If a business
speaks about matters related to commerce, must that be commercial speech? What if those matters are also questions of
public policy? Must the published [*387] space or broadcast time be purchased by the speaker to make it commercial
speech? Would it matter if the space had been donated? Could answers given during an interview be deemed commercial speech because the speaker had commercial motives? If the concern is the power of large corporations to influence
consumers, then is the problem any and all speech by commercial actors? What about speech by individuals who have
commercial or financial interests in the subject? In a more-or-less free market economy, is all speech potentially commercial? These are just a few of the questions that follow from this state of uncertainty.
Why, then, do we have a commercial speech doctrine or category and should we? This question reflects an understandable desire to empower government to protect people from, among other things, fraudulent or deceptive trade practices and to promote the general public welfare. This is certainly a laudable desire and one that must be taken seriously.
This article argues that the reasons for the doctrine are unpersuasive because society can accomplish the same goals
through a different approach that focuses on the conduct that harms individuals or the public welfare and does not target
expression as a substitute for focused legislation. The approach is neither new nor revolutionary. It uses the same doctrinal tools used by courts in symbolic or expressive conduct and other speech cases -- tools that distinguish expressive
from non-expressive conduct and then examine the purpose behind the regulation or underlying law to determine the
level of scrutiny required to be constitutional. If there is room in society to burn a few crosses for expressive, albeit reprehensible, purposes, then there ought to be room and the same basic rules for expression in the realm of commerce,
whether called commercial speech or expressive commerce.
This article examines the commercial speech conundrum in five sections. First, the article surveys the literature,
which is hardly uniform in its acceptance or criticism of the commercial speech doctrine. This lack of consensus is a
fundamental problem with commercial speech as a tool for adjudicating cases. Second, the article examines the roots of
commercial speech in key Supreme Court decisions since 1942. These roots illuminate the reasons courts have created
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the commercial speech category as well as the ad hoc nature of the cases that dilute its coherence as a doctrine or methodology. Third, the article examines the Nike case as an example of the danger to free debate posed by the commercial
speech doctrine. Fourth, it examines recent cross-burning and telemarketing cases as illustrations of the Court's approach to symbolic and speech-laden conduct problems -- [*388] an approach that may obviate the need for the
commercial speech category. n12 Finally, the article concludes that if a different approach is taken to speech involving
commerce, the approach will be a familiar and effective one and the sky will not fall, nor other shoes drop. n13
THE LITERATURE AND A DOCTRINE IN DISARRAY
There is no shortage of cogent and thorough articles analyzing the commercial speech doctrine. The doctrine has
received increasingly thought-provoking examinations as courts have struggled with its definition and tests. Several
scholars support its retention, often with some refinement, and emphasize the distinction between speech that has some
nexus with commerce and other speech, be it concerned with politics, art, religion or any other subject. n14 Support for
the commercial speech doctrine tends to rely on one or more of these core arguments: First, full protection of commercial speech will frustrate various regulations designed to protect consumers, particularly children (these concerns run the
gamut from tobacco, food and drug advertising to compelled publication of such things as health [*389] warnings to
billboard regulations to alcohol and slick image campaigns); n15 second, the extension of full protection will dilute the
First Amendment when it comes to political or other speech; n16 third, commercial actors speak in a calculated manner
to sell or persuade in their own self-interest, and this makes their speech economically motivated, hardier, verifiable and
dangerous or, at least, less deserving of constitutional protection; n17 and, fourth, historically and functionally, commercial speech is different and valued largely because it merely communicates information and does not foster or constitute
democratic participation. n18
The literature also includes the case against the commercial speech doctrine. The articles are legion with regard to
the doctrine's flaws and inconsistencies. n19 For example, several scholars have explored the historical roots of commercial speech and analyzed various [*390] practical and doctrinal problems. n20 Some have argued, much as Justice
Clarence Thomas has, n21 that content-neutral regulations of commercial speech ought to be subject to intermediate
scrutiny and content-directed regulations ought to be subject to strict scrutiny as are regulations of political speech and
that the distinction between noncommercial and commercial speech is meaningless. n22 Others have suggested rolling
back any protection of commercial speech to avoid legitimizing its inherently ad hoc balancing approach to questions
concerning any speech. n23
These analyses, whether calling for the retention, modification or scrapping of the commercial speech doctrine,
demonstrate by their dissonance the impracticality, uncertainty and risks associated with the doctrine. The absence of
any consensus regarding the doctrine, its application and even the definition of what is commercial speech is undeniable. n24 It would be counterproductive to attempt to correct the doctrine's shortcomings by devising more complicated
tests and writing other linguistic formulae that would be too arcane to guide day-to-day decisions of advertisers and
businesses. n25 If this state of [*391] affairs did not concern a fundamental constitutional right such as speech about
issues undeniably vital to the people of a market-oriented culture (the sale of goods and services, the role and policies of
commercial and corporate actors, the availability of prescription drugs, forms of birth control, and even the sale of
sneakers, for example), then perhaps it could be dismissed as a constitutional anomaly of little concern. It cannot.
One scholar's distillation of the commercial speech problem focused on the potential and logical risks presented by
the ad hoc nature of the cases in the wider context of First Amendment jurisprudence. Professor Vincent Blasi in "The
Pathological Perspective And the First Amendment" argued that speech cases should be adjudicated with an eye to
strengthening the core of the First Amendment to weather inevitable periods of intolerance and in that context he addressed, among other issues, the commercial speech dilemma. n26 In assessing the advantages and disadvantages posed
by the law of commercial speech, Blasi concluded that the Court's "middle-of-the-road" attempts to examine the content
of advertising (to determine, for example, if it would mislead audiences even when not inaccurate in any objective
sense) posed the danger of "legitimation of an ad hoc balancing methodology" with regard to the benefits and costs of
speech. n27 Therefore, Blasi reasoned that there were strategic reasons for courts to exclude commercial speech from
First Amendment protection. n28 Courts would, under Blasi's approach, avoid difficult, content-based line-drawing
problems that tend to arise with the current middle-of-the-road approach and would not risk frustrating the regulatory
purposes behind many advertising-related laws.
[*392] Ad hoc balancing is dangerous in the First Amendment context, but events and cases subsequent to publication of "The Pathological Perspective And the First Amendment" have shown that taking commercial speech out of
the ambit of constitutional protection now may be riskier to fundamental speech values. In the twenty years since 1985,
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commercial speech cases have become more ad hoc, the Nike litigation has demonstrated the incoherence of commercial speech as a category in the modern marketplace, and other recent decisions have illuminated the constitutional path
government may take to regulate commercial activity. Therefore, the Supreme Court should avoid legitimizing ad hoc
balancing in speech cases not by eliminating the protection of commercial speech, but by eliminating the distinction
between commercial and non-commercial speech.
FROM HANDBILLS TO BROADCASTING: COMMERCIAL SPEECH BECOMES A DOCTRINE
If the root of the current approach to speech defined by its commercial character is the 1942 decision in Valentine v.
Chrestensen, n29 the trunk is a series of cases including Virginia State Board of Pharmacy v. Virginia Citizens Council,
Inc., n30 and the dense, nearly opaque canopy includes Central Hudson Gas & Electric Corp. v. Public Service Commission n31 and subsequent cases. n32
The Valentine case arose when F. J. Chrestensen docked his retired Navy submarine at a state-owned pier in New
York City and started passing out handbills to attract people to his tours of the attraction, which he operated, as the
Court noted, for profit. n33 Chrestensen used a state-owned pier because the city had denied permission to use a more
convenient city-owned pier, citing sanitation reasons and city refusals to allow others to dock boats there for use as
night clubs, restaurants and dance halls. n34 City police advised him that the distribution of the handbills would violate
the city's sanitation code, "which forbids distribution in the streets of commercial and business advertising matter," and
that he was free to distribute [*393] "handbills solely devoted to information or a public protest.'" n35 Chrestensen
responded by reprinting the handbills. On one side, he protested the city's refusal to provide him with space for the
submarine at a city pier; on the other, he promoted his tours, without listing the admission fee. n36
Police were not deterred, and they restrained Chrestensen from distributing the handbills. n37 He then sued the city
for an injunction. n38 The Supreme Court upheld the regulation and disposed of Chrestensen's revised handbills as a
transparent attempt to evade the city's ordinance limiting commercial activity in public streets. The Court stated without
analysis or thorough discussion that government may regulate expression in streets as long as the regulation does not
unduly burden speakers, but "the Constitution imposes no such restraint on government as respects purely commercial
advertising." n39
Although this case is often cited as the root of what would become the commercial speech doctrine, it is more appropriately understood as a city and the Court looking at a commercial actor (the tour operator) and characterizing his
handbills as commercial activity and as a subterfuge intended to evade the regulatory power of the city. The case characterized commercial activity as speech because the city confused the issue by attempting to address its concerns about
the submarine through an ordinance that addressed litter and the use of public streets. The issue in this case was not
commercial advertising, but what Chrestensen was doing in the city. Had Christensen published his commercial advertising in a different manner, a newspaper for example, he would not have been using the streets for commercial activity.
Had the city addressed the propriety or impropriety of his tours and method of soliciting customers, and not attempted
to control conduct by controlling printed materials, matters of speech would not have been confused with matters of
commerce. As one scholar has argued, the Court's "remarkably untroubled" unanimous dismissal of "commercial advertising" as "purely commercial activity" that government could regulate reflected in large part the social and judicial climate of the time, including a widespread hostility toward the advertising industry, a fledgling First Amendment jurisprudence, [*394] and general deference by the courts to government regulation of economic matters. n40
Two subsequent cases presented the Court with advertisements in which the commercial transactions in question
were, at best, incidental to the communication of social or issue-oriented information generally, and, thus, the Court had
no trouble protecting the speech under the First Amendment. In New York Times Co. v. Sullivan, n41 the fact that the
false statements appeared in a newspaper advertisement purchased by the speakers was no impediment to application of
the First Amendment. n42 In Bigelow v. Virginia, n43 the advertisement communicated to readers in Virginia, a state in
which abortions were not legal, the availability of legal abortions in New York. The Court had no trouble sidestepping
the commercial nature of the offer of such medical services because the content of the advertisement was deemed a
matter of great public interest, and because Virginia had no legitimate interest in prohibiting the publication of information regarding activities outside its borders in jurisdictions in which such activities were legal. n44
The legality or illegality of the underlying activity was also the critical issue in Pittsburgh Press Co. v. Pittsburgh
Commission on Human Relations, n45 which preceded Bigelow by just two years. In this case, the Court upheld the
proscription of newspaper advertising headings that, in effect, aided illegal sex discrimination in employment. n46
Whether the advertising headings constituted commercial speech at any level of constitutional protection was irrelevant,
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the Court concluded, because the issue was the illegality of the underlying commercial activity: discrimination and the
aiding of discrimination in employment. n47
The root of the problem with commercial speech as a doctrine or category is this hodgepodge of cases from which
it arose, including one about communications facilitating illegal employment discrimination (Pittsburgh Press n48), one
about commercial activity with only incidental speech elements (Valentine n49), and two which were not [*395]
about commerce (Sullivan n50 and Bigelow n51). The doctrine should have been unnecessary in Valentine and Pittsburgh Press because the underlying issue in those cases was the commercial activity and not speech; and, the doctrine
was distinguished or ignored in Sullivan and Bigelow because the legal actions (the libel suits in Sullivan and the regulatory action in Bigelow) were aimed directly at expression and not merely at commerce.
Not until Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. n52 did the Court confront
a regulation or law directly aimed at expression in an advertisement that, on its face, was just an offer to sell a legal
product and not an expression of obvious political or social views. The Virginia statute prohibited the advertising of
prescription drug prices by licensed pharmacists. The state banned the advertising because it feared that price competition would distract pharmacists, lessen the stature of the profession and ultimately injure consumers. n53 As Justice
Harry Blackmun stated, writing for the Court:
Here, in contrast [to Bigelow], the question whether there is a First Amendment exception for "commercial speech" is squarely before us. Our pharmacist does not wish to editorialize on any subject, cultural,
philosophical, or political. He does not wish to report any particularly newsworthy fact, or to make generalized observations even about commercial matters. The idea' he wishes to communicate is simply this:
I will sell you the X prescription drug at the Y price.' Our question then is whether this communication is
wholly outside the protection of the First Amendment. n54
The Court answered the question by striking the statute and noting the keen interest of consumers in the free flow and
receipt of commercial information, including prices for prescriptions. n55 Thus, with a focus on the interest of readers or
users, the Court acknowledged that even information communicated solely for the purpose of offering a commercial
transaction has some level of protection under the First Amendment as commercial speech. n56
[*396] In Virginia Board of Pharmacy, the regulation of the communication of accurate prices for legal products
or services was deemed not a legitimate exercise of the state's police power, but an attempt to squelch competition and
public discourse. n57 The attempt to use public safety to shore-up the restriction of advertised prescription drug prices
failed because the regulation was aimed not solely at a commercial transaction (pharmacists could sell their products at
any price), but at the communication of the information to the public. Thus, the case was not about a commercial transaction that the state regulated to protect consumers from deception, fraud or some other injury. Had the state wanted to
regulate prices, it would have had to wrestle with the issue directly and through the legislative process and without
sneaking a de facto regulation through a backdoor regulation of advertising.
Although the Court went to some lengths to distinguish these facts from an advertisement in which the speaker
made generalized statements about commercial matters (arguably the Nike case), which by implication would have been
clearly protected by the First Amendment, the Court, in effect, recognized that even the mere communication of price
was speech to some degree. The Court reached for the First Amendment as a basis to strike down a statute it found to be
anti-competitive and repugnant as a matter of public policy. Unfortunately, by 1976 the lexicon of commercial speech
had taken root and the courts treated the category as a hybrid between pure speech, whatever that is, and mere commerce, but did not confine the category to communications of price and offers alone. Had that distinction been made
clear, then these rulings might have constituted a step forward that extended at least some protection to what might otherwise be considered a transaction only. Instead, commercial speech became a catch-all that appeared to include other
communications, and the category ultimately contracted protection for utterances that had a nexus with commerce, but
were not advertisements offering to sell products or services. The inception of commercial speech was thus flawed and
unhelpful as a doctrine. n58 First Amendment jurisprudence would have been better off had the Court found some other
basis for striking the statute in Virginia Board of Pharmacy [*397] or had the holding been clear in its extension of
constitutional protection to what the Court in Valentine called "purely commercial advertising." n59
The flaws and doctrinal superfluity became more evident with the Supreme Court's decision in Central Hudson Gas
& Electric Corp. v. Public Service Commission. n60 In this case, various regulated electric utilities promoted the use of
electricity in advertisements and the New York Public Service Commission ordered the utilities to discontinue the advertisements because the commission deemed the messages contrary to its energy conservation policies. n61 The Court
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articulated a four-part test that asked if the advertising was deceptive, false or for an illegal product or service; if the
asserted governmental interest behind the regulation was substantial; if the regulation directly served that substantial
interest; and if the regulation was narrowly tailored to that interest. n62 The commission did not claim the advertising
was false, misleading or for an illegal activity. n63 The Court found the state regulation passed muster under the second
and third prongs of the test (because the commission had a substantial interest in energy conservation and believed the
advertisements would increase consumption), but the Court held the regulation failed as insufficiently tailored because
the ban on advertising could be applied even to advertising for energy-efficient electrical appliances. n64
With Central Hudson, commercial speech as a category of speech grew into a thicket. Justice Lewis Powell, writing
for Court, began with language indicating the value of commercial expression, but he presupposed a definition of commercial speech that was too broad and an invitation to judicial assessments of the interests behind speech:
The Commission's order restricts only commercial speech, that is, expression related solely to the economic interests of the speaker and its audience. The First Amendment, as applied to the States through
the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation.
Commercial expression not only [*398] serves the economic interest of the speaker, but also assists
consumers and furthers the societal interest in the fullest possible dissemination of information. n65
Justice Powell then proceeded to apply this broad definition as if it were derived from a narrow distinction rooted in
common sense:
Our decisions have recognized "the commonsense' distinction between speech proposing a commercial
transaction, which occurs in an area traditionally subject to governmental regulation, and other varieties
of speech." The Constitution therefore accords a lesser protection to commercial speech than to other
constitutionally guaranteed expression. The protection available for particular commercial expression
turns on the nature both of the expression and of the governmental interests served by its regulation. n66
This reasoning is problematic because the first paragraph, which purports to define commercial speech as expression solely related to economic interests, does not logically lead to and is broader than the second paragraph's reference
to commonsense distinctions and commercial transactions. "Economic interests" is a broad phrase, open to considerable
debate regarding its scope, and not limited to the commercial transactions. Even speech related solely to economic interests may have nothing to do with a commercial transaction. Although the utilities in Central Hudson were promoting
the use of electricity, arguably inviting consumers to transact commerce, the Court did not conclude the advertisements
were offers or inducements, but viewed the advertisements as speech. n67 The Court may have been right about that.
The utilities may have been engaged in speech. If a public interest group or environmental organization had published
advertisements encouraging the use of electricity rather than natural gas, it is hard to imagine any court seriously enforcing a state regulation prohibiting such speech. The matter would have been left to the market and to responses from
opposing points of view. If, however, the utilities falsely or deceptively offered for sale or promoted electricity or appliances, it is easy to imagine courts enforcing state laws against deceptive commercial practices. Or, if the status of the
speakers as regulated public utilities allowed greater state control, the result could be more easily rationalized. The fact
is the [*399] state was regulating the content of the advertisements and the state's purpose was the control of expression.
In Central Hudson, the communications at issue were forms of expression or they were commerce or a mix of the
two, and the purpose or target of the regulation was either expression or commerce. At times that line may be a bit unclear, but doctrinally the communications and the legislative purpose must be characterized as one or the other, or a
mixture. If the advertisements constituted speech (which they did), the regulations were just old-fashioned state attempts
to control the content of speech without evidence of deception, fraud or illegality. This attempt to straddle the fence by
characterizing these advertisements as forms of speech related only to the economic interests and then creating a test led
to more confusion with regard to what was or was not protected.
One of the more problematic decisions of the last twenty years was Posadas de Puerto Rico Associates v. Tourism
Company of Puerto Rico. n68 In Posadas, the Court laid waste to its Central Hudson test by ruling that Puerto Rico
could ban truthful advertising addressed to its residents for gambling casinos operating legally in its jurisdiction. The
Court reasoned that Puerto Rico had a substantial governmental interest in reducing local residents' demand for gambling while the casinos catered to tourists. n69 According to the Court, the case involved a "restriction of pure commercial speech which does no more than propose a commercial transaction. . . .'" n70
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Because gambling was associated with crime and immorality and because the local government had the power to
ban gambling, the Court held that Puerto Rico could exercise the lesser power to ban advertising that promoted gambling. n71 Consequently, the Court allowed paternalistic local officials to deny residents truthful information about a
service the legislature made legal in that same jurisdiction -- thus denying those residents access to information on the
basis of its content and denying advertisers an opportunity to deliver their message. The logic behind the decision in
Virginia Board of Pharmacy (which focused on truthful advertisements regarding prices) was missing in action. Having
relegated advertisements to a disfavored speech category, the Court was able to countenance blatant viewpoint and audience-driven discrimination among truthful speakers regarding a legal service.
[*400] Subsequent decisions in the 1980s and 1990s complicated the law further. For example, in Board of
Trustees, State University of New York v. Fox, n72 conduct the state could have regulated became a speech issue for
questionable reasons. The Fox case arose in the context of a state regulation prohibiting commercial activity on state
university campuses -- the demonstration and sale of housewares in a dormitory room. The case should have been resolved solely on the basis of a state's power to regulate commercial activity, as opposed to speech, in state-owned and
operated facilities. The company, AFS, and several students sought a declaratory judgment and injunctive relief. n73
AFS later dropped out of the lawsuit, but the students continued and argued a First Amendment right to receive information. n74 The receipt of information should not have been the underlying issue; commercial activity in a
state-operated dormitory was, or should have been. n75 Several cases in the 1990s focused on the presence or absence of
empirical evidence of satisfaction of the Central Hudson test, essentially the prongs requiring actual advancement of the
government's claimed substantial interest and the absence of overbreadth, but did not clarify the definition of commercial speech. n76
[*401] In 44 Liquormart, Inc., v. Rhode Island, n77 the Court, in a maze of opinions, struck Rhode Island's ban
on price advertising for alcoholic beverages, further complicated the Central Hudson test, and all but directly overruled
the decision in Posadas. The justices agreed that the Twenty-first Amendment, repealing Prohibition, but leaving to the
states the power to prohibit commerce in alcoholic beverages, did not insulate the state's complete ban on advertising
prices, which the state had failed to justify. n78 The justices did not agree, however, on a definition of what the state
would have had to show to justify the ban.
At least four justices (Sandra Day O'Connor, William Rehnquist, David Souter and Stephen Breyer) appeared
committed to the Central Hudson test. n79 They struck Rhode Island's ban under the test's fourth prong, as relaxed in
Board of Trustees, State University of New York v. Fox (requiring a reasonable fit between the state's interest in reducing consumption and the method adopted by the state). n80 They relied on the existence of other means (increasing sales
taxes, for example) that would more directly serve the interest without banning truthful speech, and they unconvincingly
sidestepped Posadas, noting that in subsequent cases the Court has examined more closely the state's professed goal
behind limitations of such forms of speech. n81 Joined by a shifting coalition, Justice John Paul Stevens argued that
special dangers flowed from complete bans on truthful, non-misleading commercial messages and thus required special
care and a more careful review. Stevens, joined by Anthony Kennedy, Clarence Thomas and Ruth Bader Ginsburg,
questioned the holding in Posadas. n82 He distinguished the case in part, but also [*402] stated that "the reasoning in
Posadas does support the State's argument, but, on reflection, we are now persuaded that Posadas erroneously performed the First Amendment analysis." n83 Justice Antonin Scalia, concurring in the judgment, opined that he would
defer to historically accepted practices (at least if the practice did not suppress political ideas) and declined to declare
the Central Hudson test wrong. n84 Finally, Justice Thomas, though he joined portions of the Stevens opinion, added
that attempts by government to keep legal users of a product or service ill-informed in order to manipulate the market
were illegitimate. n85 Consequently, Thomas concluded it did not matter whether the speech was commercial, the Central Hudson test was inapplicable and Rhode Island's ban unconstitutional. n86
With a bit more clarity, the Court, in Greater New Orleans Broadcasting Association v. United States, n87 held that
the same prohibition of lottery or gambling broadcast advertisements upheld in United States v. Edge Broadcasting, n88
could not be constitutionally applied to advertisements for lawful gambling aired by stations in a state in which the
gambling was legal. The government had prevailed in both the district court and the Court of Appeal for the Fifth Circuit under the Central Hudson test. n89 Essentially, the lower courts held that the federal statute and related FCC regulations served the government's interest in restricting gambling and minimizing social ills historically associated with
gambling by regulating interstate broadcasting that individual states could not regulate. n90 As noted by the Supreme
Court, the majority opinion in the Fifth Circuit relied heavily on Posadas and reached its decision before the 44 Liquormart decision. n91 From that vantage point, the Court declined to adopt a test more stringent than Central Hudson,
but held that the third and fourth prongs of the test doomed the state's ban. n92 Thus, the Court focused on whether the
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ban directly advanced the asserted interest and whether it was narrowly tailored. With the existence of regulations that
exempted state-operated casinos and tribal casinos, among [*403] others, the Court had no trouble concluding the
ban of truthful advertising of commercial casinos was unconstitutional. n93
Attempts to meaningfully apply the third and fourth prongs of the Central Hudson test continued in Lorillard Tobacco Co. v. Reilly. n94 At issue were Massachusetts' regulations restricting the sale, advertising and labeling of tobacco
products. n95 Aside from holding that various advertising regulations were preempted by federal law, the Court focused
on the First Amendment and under the third and fourth prongs struck down all regulations not related to the actual sale
of tobacco products. n96 With regard to outdoor advertising restrictions, the Court held the regulation failed the fourth
prong because the minimum distance (prohibition within 1,000 feet of a school or playground) and the range of potentially covered communications (possibly oral and in-store materials as well as outdoor billboards) demonstrated a lack
of narrow tailoring. n97 The Court held the regulations prohibiting point-of-sale tobacco advertising lower than five feet
from the floor in retail establishments within 1,000 feet of schools or playgrounds failed the test's third and fourth
prongs. n98
The separate opinions demonstrated again the unsettled understanding of commercial speech and the Central Hudson test. Justice Kennedy, joined by Justice Scalia, filed a concurrence in which he expressed continuing concern regarding the Central Hudson test and whether it provided sufficient protection for truthful, non-misleading commercial
speech. n99 Justice Thomas, in his concurrence, echoed his argument in 44 Liquormart that government restrictions of
truthful speech to suppress ideas required strict scrutiny whether the speech was characterized as commercial or otherwise. n100 Justice Stevens, joined by Justices Ginsburg and Breyer, concurred in part and dissented in part. n101 They
disagreed with the majority on the federal preemption issue, while agreeing with the First Amendment analysis generally, though they would have remanded the case for further proceedings and development of the factual issues. Justice
Souter also concurred in part and dissented in [*404] part, agreeing with Stevens on the preemption issue and need
for a trial on the question of the 1,000-foot limit regarding advertising. n102
As demonstrated, six decades of decisions following Valentine v. Chrestensen have not yet clearly defined what is
or is not commercial speech. Two decades of decisions have not resolved the ambiguities regarding the meaning and
application of the four-pronged test of the Central Hudson Gas & Electric v. Public Service Commission. In this state of
legal uncertainty, speech with some nexus to commerce remains vulnerable to constraints based on viewpoint. Targeted
by a long, though perhaps deserved, negative public relations campaign, Nike stumbled into this unsettled legal terrain
when someone who disagreed with and wanted to suppress the company's responses sued under California law.
NIKE AND SPEECH SUPPRESSION THROUGH LITIGATION
The facts of the Nike case are fairly straightforward. n103 Nike is one of the leading manufacturers of athletic shoes,
clothing and equipment. The company's print and broadcast advertising campaigns are as ubiquitous as the American
flag itself. One of the company's slogans, "Just do it," has slipped into the popular lexicon of everyone from kids on
basketball courts to corporate consultants. As with many contemporary manufacturers and retailers, foreign production
and contractors are critical components in the Nike operation. In fact, in its brief before the Supreme Court, the company stated that its "goods are produced at approximately 900 factories in 51 countries with more than 600,000 employees." n104
Beginning in 1995, Nike found itself the target of highly negative allegations about the working conditions, compensation, worker safety and atmosphere in various Nike-contracted facilities in Southeast Asia. n105 As stated by
Kasky in his brief before the California Supreme [*405] Court: "The criticism of Nike's labor practices came from
many quarters: Network-television documentaries, columnists in national and local newspapers, consumer groups, labor
unions, human rights groups and nongovernmental organizations, church groups, Internet websites, college students and
faculty, and demonstrators in the streets." n106
Labor and environmental organizations accused the company of complicity in what amounted to slave labor and in
profiting through the use of sweatshops in poor, Third World countries. n107 Newspaper and magazine columnists
heaped scorn upon the company for employing child labor and oppressing local populations. The allegations and news
media reports led to demands for legislative action and, in some cases, boycotts of Nike products. n108 Even the
Doonesbury comic strip got into the act with its highly critical portrayal of sweatshop conditions in Nike's plants in Vietnam. n109 To this day, some people question the morality of Nike and its employment or contracting practices, though
former United Nations Ambassador Andrew Young, who conducted a review commissioned [*406] by Nike, issued a
report that concluded the accusations were largely false. n110
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True or false, slave or free, employed or contracted, though interesting, these were not the issues that went to the
Supreme Court. The issues before the Court stemmed from the response of Nike to its critics with its own public relations campaign, including paid image or issue-oriented advertisements. n111 Nike executives and officials also issued
press releases, published op-ed columns and wrote letters -- to editors, to universities and to others -- all in defense of
the company's practices. n112 These communications conveyed Nike's position that it had acted "morally because its
investments produced substantial economic and political benefits for workers and because it [put] its best effort toward
ensuring that employees at its contract facilities [were] paid fairly and treated well." n113 The communications did not
advertise or offer for sale particular products. n114
Kasky filed his suit against Nike in San Francisco Superior Court on April 20, 1998. n115 He alleged that Nike
made false representations in advertisements, promotional campaigns, public statements and marketing materials about
the working conditions in its contracted factories in Asia and did so for the purpose of inducing consumers to buy its
products. n116 Kasky did not, as a consumer, read the advertisements as offers for the sale of any products and
acknowledged he was neither induced by the advertisements to purchase any Nike products nor personally injured by
the advertisements. n117 Rather, as a citizen [*407] of the state of California, he sued Nike under the state's false advertising and unfair competition laws because, he argued, the advertisements were intended to reach and influence consumers of Nike products and because certain factual statements in the advertisements were misleading or false as a result of omissions. n118 Kasky sought restitution of unspecified "monies" acquired by Nike through the allegedly false
advertisements, n119 a court-supervised program to correct Nike's misstatements, and payment of his legal fees. n120
The California Unfair Competition Law (UCL) n121 and False Advertising Law (FAL), n122 under which Kasky
sued, present difficult ambiguities in terms of scope and application. California broadly defines advertising to include
essentially any communication of information about the advertiser's products or services if that communication is received in California, without regard to the site of publication. n123 The UCL defines unfair competition to include
among other things, "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." n124 The law provides for strict liability without regard to the advertiser's efforts to ensure accuracy
or to use care and even if the statements are literally true, though deemed misleading by the court. n125 The UCL also
provides for suits by private individuals for remedies including injunctions, court-ordered and supervised corrective
advertising campaigns, and restitution of ill-gotten gains. n126 California's False Advertising Law is very similar to the
UCL in [*408] scope and encompasses all acts that violate the UCL. n127 Unlike the UCL, however, the FAL applies
to any untrue or misleading statement intended to result in the sale of goods or services, specifically applies to negligent
misstatements in advertisements and provides for criminal penalties in limited cases. n128
The statements challenged by Kasky bear close examination. n129 First, all parties agreed not a single statement
urged the purchase of any Nike product. n130 Second, the statements made by Nike were responses to charges made in
the media or by labor and other organizations and reported by the news media. n131 Third, the core of Kasky's allegations was that Nike's published statements ignored or omitted specific incidents, articles, reports or other studies that
contradicted Nike's point of view. n132
Four key categories of challenged statements illustrate the nature of Kasky's theory of the case against Nike:
[*409] . There were Nike's statements about its adoption of codes of conduct, memoranda of understanding and procedural guidelines providing that contractors must not tolerate corporal punishment,
abuse or harassment of workers and that "Nike expatriates" are to "ensure safe working conditions and
prevent illegal working conditions."
. There were specific comments, including CEO Philip Knight's comment at a shareholders' meeting that
the air quality in the rubber room of a plant was better than the air quality in Los Angeles and a statement
by another Nike official, as quoted in a newspaper, than Nike's effort to require that subcontractors meet
U. S. OSHA standard was "a work in progress."
. There were statements about workers in Nike contract facilities having received free meals, housing and
health care and transportation subsidies.
. There were quotations from the Andrew Young report to refute certain allegations against the company
and portray the company as a moral actor, though not a perfect one. n134
n133
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These are noteworthy because, as argued by Nike in its brief, the thrust of the lawsuit by Kasky was that Nike did
not in its advertisements include other information (instances when the codes of conduct were violated by contractors of
Nike, for example, particular factories with air quality problems, articles alleging various workers were required to pay
for lunches, or the fact that the Andrew Young report did not address wage, hour or overtime issues). n135 Kasky thus
sued Nike in large part for not being fair and complete in its speech. Equally noteworthy was the fact that the statements
uttered by Nike were often not unequivocal in nature. n136 For example, Nike in the advertisements [*410] regarding
the Young report quoted the report as stating that "Nike is doing a good job . . . but Nike can and should do better." n137
The trial court dismissed the case, and the intermediate appellate court in California affirmed the dismissal on the
ground that the expression by Nike was not commercial and, therefore, was protected by the First Amendment. n138 In
affirming the trial court's dismissal of the case, the state appellate court held that the case directly concerned a "public
dialogue on a matter of public concern" -- the question, among others, of "employing low-cost foreign labor for work
once performed by domestic workers" -- and as such was plainly protected by the First Amendment as speech and not
merely as commercial speech. n139
The California Supreme Court, however, held that the issue-oriented advertisements could be deemed commercial
and covered by the UCL and FAL. n140 The 4-3 vote reinstated the Kasky suit because, according to the majority, (a)
Nike was engaged in commerce, (b) the intended audience was likely to be actual or potential buyers or customers or
persons acting on their behalf or with influence on such potential customers, and (c) the factual content of the messages
described business operations, policies, products or services and for a significant segment of the buying public, labor
practices do matter in making consumer choices. n141 The California Supreme Court thus defined commercial speech
very broadly. For this court, the critical question in deciding whether to classify the speech as commercial for the purpose of determining the level of constitutional protection was whether the speech was likely to influence the buying
decisions of consumers and not whether Nike was responding to attacks in the course of a very public debate. n142 The
majority also reasoned that government regulation was unlikely to chill commercial entities, including Nike and its contractors, from making statements about their business operations, and if it did make those entities more cautious regarding the truth of their assertions, then the state's laws will have had a salutary effect on commercial speech. n143
The dissenters vigorously disagreed, arguing that the rule announced by the majority would leave businesses unsure
whether even [*411] truthful statements might deceive or confuse the public and thus lead to expensive and burdensome civil litigation. n144 The result, concluded one of the dissenting justices, was the "handicapping" of one side in an
important debate and the effective elimination in California of any constitutionally protected forum in which Nike could
defend its labor practices. n145 Another dissenter attacked the commercial speech doctrine as illogical and as failing "to
account for the realities of the modern-world -- a world in which personal, political, and commercial arenas no longer
have sharply defined boundaries." n146
Such was the posture of the case as it went to the Supreme Court. Nike was sued by an individual who had not
claimed a direct or personal injury and who, though he alleged generally deliberate or reckless falsehoods, identified in
his complaint what amounted to a laundry list of claimed omissions and differences of opinion, methodology and policy. The plaintiff identified no offer to enter into a commercial transaction based on some form of deception or fraud.
Kasky sued, in effect, for what he thought would be a fairer public relations campaign by Nike or for silence and surrender by Nike in the public debate over its labor practices. Further, under the California statutes, Kasky sued Nike as a
private attorney general and sought an injunction, court-supervised speech by Nike, and legal fees. Thus, Kasky assumed the mantle of the state, as authorized by statute, and sued to stand in the shoes of a regulator to demand what he
considered to be fair speech on matters of globalization, economic policy, labor practices and similar issues. By statute,
in other words, California delegated, and Kasky assumed, the power to regulate the content of speech in the civil courts
in a manner that a state could not itself do if the speech at issue had been deemed non-commercial and if it had been
spoken by someone or some entity not engaged in commerce.
The focal point of the case thus became the definition of commercial speech. Kasky's argument before the Supreme
Court was essentially one that called for a broad definition of the commercial speech as a category:
The First Amendment permits the regulation of false or misleading commercial speech, and Nike's representations, alleged in the complaint to be false, are commercial speech. Hence, they are subject to regulation under [the California] laws.
[*412] Nike's representations are commercial speech because, as alleged in the complaint, they gave
consumers factual information to rely on in deciding whether to buy Nike's products. Many consumers
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do not want to buy goods made under illegal, unsafe, or inhumane conditions. Nike's representations assured these consumers that its goods are not made under such conditions. n147
Kasky wanted the Court to define as commercial speech Nike's responses to the allegations of its critics, be it in the
form of a marketing campaign, letters or advertisements, in order to avoid the more demanding standards applied to
regulations of speech fully protected by the First Amendment. In taking this position, Kasky relied on and echoed the
decision of the California Supreme Court that defined commercial speech to cover all communications by a speaker to
an intended audience that included potential customers or people likely to influence customers if that communication
conveyed factual information likely to influence consumers in their commercial decisions. n148
Nike, as one would expect, argued for a narrower definition of commercial speech -- one tied to actual offers of
commercial transactions:
Having said over a decade ago that the test for identifying commercial speech' is whether it proposes a
commercial transaction ( Bd. Of Trustees v. Fox, 492 U.S. 469, 473-74 (1989)), this Court has rendered
several even more definitive rulings'usually defining [it] as speech that does no more than propose a
commercial transaction" ( United States v. United Foods, Inc., 533 U.S. 405, 409 (2001)). See also, e.g.,
Edenfield v. Fane, 507 U.S. 761, 767 (1993). The California Supreme Court, by contrast, omitted any
requirement that the speech make a commercial proposal at all, much less that it do so exclusively. n149
As appealing as the simplicity of Nike's argument may appear, it is neither simple nor necessarily a persuasive response to critics who claim Nike used speech to manipulate purchasers of sneakers through false information. If government cannot regulate the use of advertising or marketing materials that omit actual offers, but manipulate consumers
through outright deception, the obvious question is whether government cannot regulate or punish speech that manipulates stock prices, fixes prices among competitors, or accomplishes [*413] other substantive evils by subtle means.
The absence of an offer to transact commerce should not insulate speech if the speaker intended to deceive or to defraud
(that is, injure) another party in the course of transacting commerce at another time.
The dismissal of certiorari in Nike v. Kasky n150 did nothing to resolve these conflicting arguments, but the dismissal was not a mere one-sentence order. In fact, the dismissal generated its own round of opinions -- concurring and dissenting. Justice Stevens concurred in the dismissal of certiorari and argued three points. First, he said the Supreme
Court lacked jurisdiction because the judgment entered by the California Supreme Court (the highest court of that state)
was not a final judgment under federal jurisdictional rules and the resolution of any federal issue by a federal court
might be affected by further state court proceedings. n151 Second, he argued that both Kasky and Nike lacked standing
to bring a federal claim. n152 Third, as the meat of his argument, he argued and held that the issues presented by the case
were so novel as matters of constitutional law that the Supreme Court should avoid premature adjudication, n153 an argument that merits a particularly close reading because it bears on his perspective in terms of the speech at stake:
This case presents novel First Amendment questions because the speech at issue represents a blending of
commercial speech, noncommercial speech and debate on an issue of public importance. On the one
hand, if the allegations of the complaint are true, direct communications with customers and potential
customers that were intended to generate sales -- and possibly to maintain or enhance the market value of
Nike's stock -- contained significant factual misstatements. The regulatory interest in protecting market
participants from being misled by such misstatements is of the highest order. That is why we have
broadly (perhaps overbroadly) stated that "there is no constitutional value in false statements of fact." On
the other hand, the communications were part of an ongoing discussion and debate about important public issues that was concerned not only with Nike's labor practices, but with similar practices used by other multinational corporations. Knowledgeable persons should be free to participate in such debate without fear of unfair reprisal. The interest in protecting such participants from the chilling effect of the prospect of expensive litigation is [*414] therefore also a matter of great importance. That is why we
have provided such broad protection for misstatements about public figures that are not animated by
malice. n154
This analysis by Justice Stevens is particularly important because Justice Ginsburg joined in the entire concurrence
and Justice Souter joined in this third argument only. The reference to the "blending" of speech elements and the reference to the allegation that Nike may have communicated with intent to manipulate customers suggests there may be
further development of these issues in future commercial speech cases.
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Justice Kennedy dissented without explanation. n155 Justice Breyer, joined by Justice O'Connor, dissented in an
opinion that sharply differed from Justice Steven's concurrence. n156 Justice Breyer found no jurisdictional or standing
impediments to review for two reasons: First, even if the decision of the California Supreme Court did not amount to a
final judgment under the Federal rules, the basic issue for decision was whether that court's ultimate holding was legally
correct that the First Amendment allowed "Kasky's false advertising prosecution' to go forward;" and, second, the litigation against Nike under the private attorney general statute of California threatened serious financial injury to Nike and
threatened to discourage Nike's speech. n157 Justice Breyer concluded, therefore, that there existed no prudential argument for a delay in deciding the matter and that any delay would extract "a heavy First Amendment price." n158
Justice Breyer emphasized further that there was a difference between speech involving communications purely
commercial in nature and speech that was a mix of commercial and "noncommercial (public-issue-oriented) elements,"
such as the statements in this case. n159 Consequently, he stated he would apply "a form of heightened scrutiny to the
speech regulations in question" -- a level of scrutiny, he added, the California statute could not survive. n160 Particularly
significant for Justice Breyer was the delegation of state authority over false advertising cases to private individuals,
who had suffered no injury:
[*415] The delegation of state authority to private individuals authorizes a purely ideological plaintiff,
convinced his opponent is not telling the truth, to bring into the courtroom the kind of political battle
better waged in other forums. Where that political battle is hard fought, such plaintiffs potentially constitute a large and hostile crowd freely able to bring prosecutions designed to vindicate their beliefs, and
to do so unencumbered by the legal and practical checks that tend to keep the energies of public enforcement agencies focused on more purely economic harm. n161
The crux of the matter was the treatment of false speech characterized and categorized as commercial speech. Justice
Breyer favored constitutional protection in the form of heightened scrutiny for arguable commercial speech that involved matters of public concern, including the Nike communications, which he termed at least in part "public-issue-oriented." n162
The scorecard thus read: Three would have decided the case, and six wanted to pass on the opportunity, with three
of those arguing that the case was just too novel to be decided. In effect, those three justices, and possibly another three,
wanted a bit more time and the benefit of state court decisions before wading further into the morass that has become
the commercial speech doctrine. Whatever the count, the opinions suggested a growing recognition that something was
amiss with the commercial speech doctrine and that some analysis of what Nike was intending to do and what was the
purpose of California's statutory scheme and Kasky's suit would be appropriate, if not constitutionally required.
The obvious question regarding such judicial restraint is: Why then and in that case? The answer must lie, in part,
in the fact that the Nike litigation brought into focus the irreconcilable conflict between a commitment to wide-open,
robust public debate of issues and a legal regime that, on the basis of the perceived commercial interest of the speaker,
allows litigation directly aimed at chilling such speech when no one can point to a single offer, intended offer to sell
shoes, or any actual injury flowing from Nike's responses to its critics. Justice Breyer's dissent from the dismissal of
certiorari captured [*416] the problem. Not only was this a case that involved speech about a public issue, but it was
a case prosecuted with the imprimatur of the state and without any of the usual checks and balances that constrain governmental enforcement or private damage actions.
The restraint may have reflected an understandable concern over the consequences of discarding or materially revising the categorical treatment of commercial speech. Justice Breyer may have been suggesting a middle approach or
fine-tuning of the applicable definition and test by focusing on public-issue-speech by commercial actors. The attempt
to distinguish pure commercial speech from public-issue-oriented commercial speech may appear appealing, but it may
also lead to the same line-drawing problems that have plagued the Court for decades, unless the focus is the difference
between conduct and expression. The difference would hinge on the intent of the speaker and reasonable understanding
of third-party readers or recipients. If the words constituted a component part of a commercial act, then the state could
bring an enforcement action under applicable law. If the words injured an individual, then that individual could bring a
suit to recover damages (for invasion of privacy, defamation, theft or disclosure of trade secrets or fraudulent inducement, for example). But without an injury and with only differences over viewpoint, lawsuits and private attorneys general statutes would be antithetical to free expression and debate. As Justice Breyer correctly argued, the courts are just
not the forum for the resolution of a debate that is simply a clash of views and opinions.
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One missing link is intent to defraud, deceive, injure or engage in conduct that government may regulate, as opposed to mere intent to engage in expression. For example, if Nike deliberately, knowingly, or with reckless disregard
published falsehoods to defraud, deceive or otherwise injure consumers buying its sneakers, that would be unprotected.
If Nike published an actual offer to sell sneakers and did so in a misleading fashion, that would be a unprotected, too.
n163
One might even argue for liability in a case of negligent misrepresentations, under certain circumstances. n164 If
Kasky himself suffered some injury or harm as a result of advertising by Nike, then he could [*417] sue for his own
recovery and perhaps even as a class representative in a class action and that, too, would be a different matter. Any statute addressing one of those situations would be, however, quite different from the California statutes under which
Kasky sued.
Such a revised statute would not expose a speaker to litigation simply because some member of the public disagreed with Nike's take on the facts, on the progress made to date, or on the methods for calculating average wages, air
quality or other matters. Such a revised statute would require the requisite mens rea or state of mind on the part of the
speaker to perform the illegal act; it would require, for example, evidence of an offer by the speaker (Nike) to enter into
a commercial transaction or transactions or at least an intent to induce fraudulently a purchase by a consumer; it would
require, before allowing either individual actions or class actions, some allegation of, and ultimately evidence of, injury
to the plaintiff. And, such a revised statute would be directed not at speech alone, but at transactions, fraud or similar
acts.
As Nike argued, the California approach was essentially a strict liability rule directed at speech and, as such, it
could pass constitutional muster only if the speech at issue was somehow deemed less worthy or unworthy of First
Amendment protection. n165 Examining intent and understanding, however, is only one part of the solution to the problem of expressive conduct; courts must also examine the purpose of the statute or regulation to determine the appropriate level of constitutional scrutiny to be applied. The approach next proposed is hardly novel; the foundation for it exists
in many cases, including several recent decisions of the Supreme Court.
COMMERCE, CONDUCT, BURNING CROSSES AND PATHS THROUGH THE COMMERCIAL SPEECH
MAZE
At first glance, the Supreme Court's burning cross or hate speech decisions in R.A.V. v. City of St. Paul, Minnesota
and Virginia v. Black n167 would seem to have no or little relevance to the Nike litigation or commercial speech, but
the distinction accepted by the Court between the invalid ordinance in R.A.V. and the essentially valid statute in Black
suggests a solution to the problem of speech that may have had a commercial motive or impact.
n166
[*418] The R.A.V. case arose after several teenagers, including the petitioner, constructed a make-shift cross from
pieces of a broken chair and burned it in the fenced front yard of a neighboring black family. Justice Scalia, writing for
the Court, began by noting the teenagers could have been prosecuted under any number of significant state laws, including Minnesota's anti-terrorism law, arson law and criminal damage to property laws, each of which carried serious
penalties. n168 Instead, the teenagers were charged under the city's Bias-Motivated Crime Ordinance, which provided:
Whoever places on public or private property a symbol, object, appellation, characterization or graffiti,
including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable
grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion
or gender commits disorderly conduct and shall be guilty of a misdemeanor. n169
Because the Minnesota Supreme Court construed the ordinance to reach only fighting words as defined by Chaplinsky
v. New Hampshire, n170 and thus only expression not protected by the First Amendment, Justice Scalia did not address
the question whether all expression actually covered by the ordinance in fact amounted to fighting words. n171 While
characterizing cross burning as reprehensible and grounds for possible prosecution under different laws, the Court invalidated the ordinance because it punished expressive conduct solely based on the subject of the expression. n172 The
Court emphasized that the ordinance permitted displays of abusive invective unless addressed to one of the disfavored
topics (gender, race and religion, for example). n173 Justice Scalia explained that had the basis of this content discrimination consisted "entirely of the very reason the entire class of speech at issue [was] proscribable, no significant danger
of idea or viewpoint discrimination" would have existed. n174 He pointed out that anyone using fighting words expressing hostility based on political affiliation, union membership or homosexuality would not [*419] be covered by the
ordinance. n175 This content or viewpoint-based discrimination among speakers made the ordinance facially unconstitutional, Justice Scalia wrote. n176
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The contrast between the result in R.A.V. and the result in the more recent decision in Virginia v. Black is not as
striking as it may seem. In Black, the Virginia law covered not merely the burning of a cross with knowledge that it
would arouse anger or resentment based on race, but the burning of a cross with intent to intimidate any person or group
of persons:
It shall be unlawful for any person or persons, with the intent of intimidating any person or group of
persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public
place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.
Any such burning or a cross shall be prima facie evidence of an intent to intimidate a person or group of
persons. n177
[*420] Barry Elton Black, who had led a Ku Klux Klan rally in August 1998 on private property within sight of a
state highway and several homes, was prosecuted for burning a cross that was twenty-five to thirty feet tall. Two other
individuals, not affiliated with the Klan, were prosecuted for a separate attempt to burn a cross in the yard of black
neighbor. All three were convicted and appealed.
The Court struck the second part of the statute that made the act of cross burning prima facie evidence of intent to
intimidate. In a series of fractured opinions, seven justices agreed the evidentiary presumption made convictions more
likely and thus created an unacceptable risk of suppression of ideas. n178 The Court otherwise upheld, by a 5-4 vote, the
statute because it did not violate the First Amendment insofar as it banned cross burning with the intent to intimidate.
n179
The majority distinguished the Virginia statute from the city ordinance in R.A.V. by explaining the Virginia statute
did not target speech directed only to specified subjects and was not, therefore, content-based discrimination. Black's
conviction was reversed because the trial judge had instructed the jury in a manner that allowed it to rely on the presumption of intent, but the Court also vacated the state supreme court ruling that had reversed the other convictions in
reliance on the R.A.V. decision.
On first reading, the decision in Virginia v. Black might seem inconsistent with the holding in R.A.V. v. St. Paul. It
was not. Both cases dealt with the same basic act: the burning of a cross, a symbol commonly understood to stand for
the oppression and intimidation of African Americans. The burning of a cross is a form of speech if it is intended to
convey a message and likely to be understood as a message. The R.A.V. case held that an idea, reprehensible as it is,
cannot be punished constitutionally as hate speech without more. n180 The [*421] Black case provided the "more" and
that was the intent and the act of intimidation. Although it focused on cross-burning, the statute in Black applied without
regard to the point of view or reason behind the intent to intimidate. In Black, the act punished was an old-fashioned
assault or act committed with intent to place someone in fear for his or her safety. The key to the R.A.V. decision is not
just the form of expression or the actor's actual or imputed knowledge regarding the symbol's arousal of alarm in others
on specified bases, but the fact that those specified bases excluded by omission other possible bases. The two statutory
approaches differed in terms of their elements, including intent, and their scope or purpose. In R.A.V., the ordinance
targeted enumerated subjects or viewpoints and that amounted to content discrimination; in Black, the statute focused on
the intent to intimidate -- on any basis.
This is substantively no different from the Court's ruling in Illinois ex rel. Madigan v. Telemarketing Associates,
Inc. n181 The telemarketers in that case were engaged in speech, or at least the act of speaking, but they were allegedly
making false or misleading statements designed to deceive donors or potential donors about the percentage of any donations that charities would actually receive. That is, the telemarketers in that case were accused of deception or fraud in
the act of soliciting money. The Court acknowledged that [*422] the First Amendment protected the right to engage
in charitable solicitations, but it distinguished fraudulent solicitations as unprotected speech. n182 Speech was not the
issue, self-serving contrary claims of telemarketers notwithstanding. n183 Consequently, the Court held the First
Amendment did not bar the state's fraud suit against the telemarketers. The Court also distinguished such fraud actions
made by states in individual cases from "statutes that categorically ban solicitations when fundraising costs run high."
n184
The Court emphasized that in a proper fraud action under state law, the state must prove not only a false statement,
but also knowledge of falsity, materiality and intent on the part of the speaker, among other things. n185 The intent or
purpose of the speaker in this and the cross-burning cases placed the communications at issue as elements of acts that
may be regulated or punished; and, the purpose behind the statutes did not raise First Amendment concerns because the
laws were not aimed at suppressing expression. Moreover, in Telemarketing Associates, as in R.A.V. and Black, the results comported with common sense -- a happy coincidence in matters of constitutional law.
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This apposition of the cross-burning and telemarketing fraud problems with the commercial speech problem raises
three central issues: intent of the putative speaker, the likely understanding or reception, if any, by the audience, and the
purpose of the statute or regulatory action. In other words, these issues echo the Court's expressive conduct jurisprudence. The expressive conduct problem is an old one. Some conduct is just conduct; other conduct, however, might be
protected by the First Amendment if deemed a form of expression. The line must be drawn carefully to avoid unnecessarily and illogically constraining state power and to avoid foolishly diluting the meaning and protection of the First
Amendment. In the 1960s and 1970s, the Supreme Court had little trouble applying the First Amendment to protect high
school students wearing black arm bands to protest the war in Vietnam, n186 to protect a young man walking in a Los
Angeles courthouse wearing a jacket that read "Fuck the Draft," n187 and to protect African Americans [*423] engaged in a peaceful sit-in or protest in a segregated library in Louisiana. n188 In these cases the Court easily concluded
the conduct was expressive because the actors intended to convey a message and the recipients or audience members
were likely to understand or receive the message. The Court held the state acted, whether based on a school principal's
policy or a state law, to suppress expression and not for legitimate and constitutional purposes, such as maintaining order in schools, libraries or courthouses.
Had the state laws and enforcement actions been motivated by legitimate purposes, then the result in each might
have been different. n189 A law may constitutionally prohibit one from mutilating a draft card or selective service registration form because the state needs that draft card to raise an army, an important purpose of government, and not to
suppress protests against a war. n190 This is the familiar difference between intermediate scrutiny and strict scrutiny in
constitutional analysis. n191 A statute serving an important or substantial public purpose and not aimed at expression
may be constitutional under intermediate scrutiny even though it incidentally burdens expression, as in the draft card
case. A statute aimed at the suppression of expression, however, must satisfy the far more difficult strict scrutiny test
that requires proof of a compelling interest of government.
Allowing for some debate regarding the differences between important interests and compelling interests and the
degree to which the fit between the statute and the purpose must be narrowly tailored, this is the lexicon adopted by the
Court for expressive conduct and other speech cases. n192 This same or a similar approach, whether directly cited or not,
is reflected in the results of the decisions regarding a variety of subjects, ranging from the burning of crosses to fraudulent charitable solicitations. In each, the threshold question is whether the First Amendment is relevant, that is, whether
the conduct is expressive. If one agrees that the activity, be it cross-burning or charitable fundraising, is First Amendment activity, the inquiry turns to the purpose of the regulation n193 and the proof required under [*424] that regulation. n194 The words and ultimate conclusions may differ from case to case, but the First Amendment values are consistent.
CONCLUSION
If advertisements and public relations campaigns are relegated to a categorical and doctrinal ghetto, courts will be
used to suppress expression by a business or other so-called commercial speaker when the speaker opposes dominant or
fashionable points of view, n195 or simply well funded and litigious members of society. Public debate will be constricted. n196 This is an unacceptable result. Speech by businesses interested in selling products or services is a vital part
of society. n197 State attempts to limit access to certain commercial information may be nothing more than thinly veiled
efforts to limit informed public debate and decision-making. From this perspective, the Supreme Court invalidated a law
prohibiting the advertising of retail prescription drug prices by licensed pharmacists. n198 It is axiomatic that protected
speech does not lose its First Amendment status solely on account of the identity of the speaker or the fact that the
speaker is engaged in commerce. n199 Speech by businesses or individuals in commerce is not categorically distinct
from political, social or other speech.
A commitment to a wide-open and robust debate is a limited commitment if it is subject to an exception based on
the poorly defined and broad commercial speech category. Regulations aimed at this category and not subject to full
First Amendment review are quite different from and more dangerous than regulations that incidentally burden expression, but do not target expression, or those that directly target expression, but also satisfy the strictest level of scrutiny.
n200
[*425] Content-triggered rules lend themselves to abuse or at least intellectual shortcuts on the part of those who
invoke the legal process to punish speakers. When this categorical approach is employed, the regulation at issue is triggered by the expression alone and the argument focuses on the definition of the category and implementation of tests
that are ad hoc. n201 Without the crutch of this categorization, the regulation may be aimed at or triggered only by reference to something other than expression (an act, a sale or an attempt to sell, for example) or else the strictest of constitutional scrutiny is required. n202 The difference is meaningful.
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10 Comm. L. & Pol'y 383, *
Why, then, has the commercial speech doctrine remained such a fixture in constitutional jurisprudence for so many
years? At the heart of the matter is the concern that without it government will be unable to regulate constitutionally
certain forms of conduct, from transactions to advertisements for harmful or illegal products. n203 If the courts were to
place the expressive elements of commerce out of the easy reach of a legislature, would the legitimate regulatory power
of the state be significantly weaker? A few scholars have argued that the distinction between commercial and
non-commercial speech is neither logical nor necessary in terms of the regulatory function of government in commercial matters. n204 Litigation, regulatory activity and case law support this position. For example, without the doctrine or
distinction, the solicitation of funds through deception or fraud could still be subject to sanction. n205 Bait and switch in
the form of the advertising of misleading prices could still be subject to civil and criminal actions. n206 The sale of illegal products or services could still be prosecuted and enjoined. n207 Zoning and other land use laws would still exist,
and billboards and adult-oriented stores could still be regulated. n208 [*426] The burning of giant crosses alongside
highways to intimidate bystanders could still subject one to arrest. n209 The sale or offer for sale of foods and drugs
through fraudulent, unsafe, harmful or deceptive means could still be regulated, n210 and states could still regulate the
sale of tobacco products and alcoholic beverages in the name of public health and public policy. n211 The basis for such
regulations would be the government's power to regulate food, drugs, intimidating conduct, land use, employment, discrimination, sales and similar matters -- and not any categorization of speech. n212 Each of these regulatory actions
could be taken without statutes aimed at expression. If such a statute were necessary, it would have to satisfy strict scrutiny to pass constitutional muster. The expression might become evidence of the criminal conduct or intent, but not itself the crime and not even prima facie evidence of intent to commit a crime. n213 The law would punish not the mere
utterance (or advertisement), but the commission of an illegal act or possibly the attempt, aiding or conspiracy related to
the act (a sale of illegal goods or services, an illegal hiring preference or fraud, for example).
[*427] If the obvious and thorny First Amendment issues presented by burning crosses and draft cards, arm
bands, sit-ins and certain telemarketers can be resolved through an old-fashioned resort to proof of intent and analysis of
government's purpose, the debate over commercial speech can be similarly resolved. The sale of sneakers should be an
easy matter. Presumably, selling sneakers is not protected by the First Amendment. In the abstract, the sale of shoes is a
commercial matter -- a transaction -- subject to the laws of the various states. The manufacturer sells the shoes invariably by communicating information -- price, terms, quality of goods, and other details about the product. The words or
information communicated are elements of the transaction; those words are only incidentally communicative. The point
of the activity is commerce, not expression. n214
If Nike offers to sell shoes through advertisements with false prices or false claims regarding the construction or
durability of its sneakers, states may regulate or create private causes of action grounded in the offer or inducement to
enter into a commercial transaction. But, there must be an actual commercial transaction involved, proposed, intended
and at least contemplated in order to make the substance of the exchange transactional rather than expressive activity.
n215
For example, if the substantive evil that state legislatures ought to be addressing is fraud in the inducement or deceptive business practices, nothing should be the subject of criminal or civil action by the state, individuals or private attorneys general without proof of the requisite conduct and intent on the part of the speaker (intent to offer or induce a
consumer to transact or intent to defraud, for example). If Nike tried to defraud consumers or commit some other
wrong, the state or injured party should articulate those allegations and prove a case. The intent or state of mind of Nike
would be an element to one degree or another, depending on the claim and applicable law. If the underlying complaint
of the state or [*428] some disgruntled individual was a disagreement with Nike's viewpoint, the litigation against
Nike, as filed in California, would appear to be an unconstitutional effort to discriminate against Nike and regulate its
speech on the basis of content. Aside from violating the spirit of a free debate, this imbalance of legal rights is fundamentally unfair. As a public company and public figure, Nike would be required to prove actual malice before recovering against any speaker defaming the company. n216 Fairness demands that Nike at least be allowed to defend itself under the same constitutional regime.
The Nike case demonstrates the danger of pretending some speech can be safely granted lesser constitutional stature
solely because it appears to involve commercial motives. If the speech also involves, accomplishes or accompanies
some act that the state may regulate or prosecute (the commission of a fraud or a conspiracy to fix prices, for example),
then the act, not just the speech or speaker, is the issue -- though the speech may be relevant and probative evidence in
court. n217 In other words, if the communication at issue is not commercial conduct in itself, then it is more likely a First
Amendment question; if there is communication, but it is merely incidental to the conduct that is subject to lawful regulation, then the issue is probably not expression and not a First Amendment question. n218 The matter need not be made
more difficult by layering on it questions about the categorizations of speech when those categories do not themselves
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10 Comm. L. & Pol'y 383, *
add any clarity to the basic attempt to define what is protected by the First Amendment and what is not. One difficult
question will suffice. n219
[*429] The expression of a commercial idea or fact in an advertisement is a questionable basis for regulation if
there is no consummated, proposed or intended transaction to which an actual injury could be attributed. n220 If the advertisement or communication does more (and the "more" would be the consummation, evidencing or proposal of a
transaction or other act that may be regulated or punished by the state), then the speaker will have left the domain of
expression and entered into the domain of commercial transactions. One must ask of [*430] the transaction: Is it a
transaction or an offer; or, is it speech, by a commercially motivated speaker or otherwise, to communicate ideas or information, but not to transact business? And, of the regulation, one must ask: What is the intent or purpose behind it?
This is not an evasion of the underlying need to define protected speech, but a narrowing of the inquiry. It is axiomatic that the First Amendment protects expression and expression includes the utterance of words. Logically, if certain
utterances are not protected, courts must define what removes those utterances from the scope of the First Amendment.
n221
One such defining characteristic is the accomplishment of an act that is not expressive. n222 There is either an act or
there is not, and there is the requisite intent or there is not. If there is expression, the First Amendment intercedes, even
if one disagrees with the message conveyed by the so-called sweatshop-supporting, immoral manufacturer of running
shoes. If there is an act and the requisite intent and the statute is not aimed at expression, but only incidentally burdens
expression, then constitutional scrutiny is only intermediate under the First Amendment. n223
[*431] The potential impact of Nike will not be limited to the commercial world of corporations, public relations
agencies or advertisers. The case may have serious implications for all forms of expression, including journalism. For
example, if businesses or business-people cannot, or believe they cannot, speak freely on matters affecting business, the
result will be a poorer marketplace and poorer, less informed, news stories. n224 If a business cannot respond in the
marketplace with its own speech, but critics may attack, perhaps constrained only by the tort of defamation, the imbalance in legal rights may create pressure to recognize or expand different legal theories to vindicate the interests of otherwise disfavored commercial speakers.
Moreover, what expression is truly and completely divorced from any commercial purpose? As the song goes, more
or less, we live in a material world; commerce motivates or infuses much, if not most, expression. n225 If courts protect
speech, subject to the law of libel, privacy or other claims, but reduce the protection provided by the First Amendment if
the speech has some nexus with economic interests, what protection does any speaker have from other inquiries into the
motives behind political speech, art or music? If an artist speaks because he wants to promote his brand of art and sell
more paintings, is his speech necessarily commercial? How different is Nike defending its human rights record from a
party loyalist or consultant extolling a candidate's human rights record? Nike's shoes just might take us running down a
very slippery slope.
At a minimum, there ought to be room in public debate for constitutionally protected, issue-oriented or image-oriented advertisements -- whether one characterizes the advertisements as positive spin for a company's labor policies, environmental practices or contribution to society, as a wrongheaded and incomplete view of the world and business, or as falsehoods. There ought to be that room [*432] even if the speaker's expression influences consumers,
absent intent to commit fraud, a crime or other proscribed act. Such speech should be subject to the same legal constraints applicable to other speech that is distasteful, laughable or mistaken -- no more and no less. Intent to injure is
different. If the issue is conduct that happens to include or to have been accomplished through some communication, the
same standards that would apply to any enforcement action by the state or to a private action should apply to that conduct -- no more and no less. n226 The California Supreme Court dangerously stepped onto a steep slope when it held that
any speech that might influence consumers' buying decisions is commercial speech and is, therefore, subject to the
courts' -- and Kasky's -- editorial control. n227 One might find Nike's positions distasteful, perhaps even laughable, if not
downright false (as Kasky did), but toleration of such expression is just one cost of the wide-open, robust and uninhibited debate often invoked as one hallmark of the First Amendment. n228 If commercial speech were defined narrowly to
encompass only speech intended to consummate a commercial transaction, n229 the category would have no significant
purpose apart from the law already applicable to transactions or conduct. The commercial speech category is, therefore,
an unnecessary and ill-defined doctrine that turns the First Amendment on its head, or at least twists its ankle, as shown
by Kasky's lawsuit against Nike.
Legal Topics:
For related research and practice materials, see the following legal topics:
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10 Comm. L. & Pol'y 383, *
Constitutional LawBill of RightsFundamental FreedomsFreedom of SpeechCommercial SpeechAdvertisingConstitutional LawBill of RightsFundamental FreedomsFreedom of SpeechPolitical SpeechConstitutional LawBill of
RightsFundamental FreedomsFreedom of SpeechScope of Freedom
FOOTNOTES:
n1 Nike, Inc. v. Marc Kasky, 539 U.S. 654 (2003). The Supreme Court of the United States heard oral arguments April 23, 2003, and dismissed certiorari as improvidently granted on June 26, 2003. The opinion of the California Supreme Court is published at Kasky v. Nike,
Inc., 45 P.3d 243 (Cal. 2002). The superseded opinion of the California intermediate appellate court is available at Kasky v. Nike, Inc., 93
Cal. Reptr. 2d 854 (Cal. App. 2000). In addition to these published opinions and the news reports cited, infra notes 7, 8 and 105, the facts
and history of the litigation may be found in the briefs of the parties as filed with the Supreme Court. See Brief for Petitioners at *1-*18, Nike, Inc. v. Kasky, 539 U.S. 654 (2003) (No. 02-575), available at 2003 WL 898993; Brief for Respondent at *1-*11, Nike, Inc v. Kasky, 539
U.S. 654 (2003) (No. 02-575), available at 2003 WL 1844849. See generally Reply Brief for Petitioners, Nike, Inc. v. Kasky, 539 U.S. 654
(2003), available at 2003 WL 1922453.
n2 The clash of values and points of views was acknowledged by Justice John Paul Stevens in his concurring opinion in the dismissal of
certiorari as improvidently granted. Nike, Inc. v. Kasky, 539 U.S. at 656-65 (Stevens, J., concurring). Furthermore, the very fact that thirty-one amicus briefs were filed and accepted by the Court (as cited by Justice Stephen Breyer in his dissent from the dismissal of certiorari)
demonstrated the breadth and intensity of the interest in the commercial speech question. Id. at 667 (Breyer, J., dissenting). The interested
amici constituted a diverse group ranging from labor unions to representatives in Congress to businesses, various state governments, individuals, activists and news organizations. While many of the amici argued as one would expect given their involvement in either manufacturing or consumer and worker activism, there were a few notable exceptions. For example, the AFL-CIO, which had taken an active part in
the criticism of Nike's subcontracting of production, filed a brief in support of neither party and argued that the debate ought to be fully free
and protected by the First Amendment (including Nike's advertisements and campaign in response to critics such as the AFL-CIO). Brief for
AFL-CIO as Amicus Curiae at *2-6, Nike, Inc. v. Kasky, 539 U.S. 654 (2003), available at 2003 WL 835038. The ACLU also filed a brief
in support of full constitutional protection. Brief Amici Curiae for ACLU and ACLU of Northern California in Support of Petitioner at
*3-24, Nike, Inc. v. Kasky, 539 U.S. 654 (2003), available at 2003 WL 721563.
n3 See Brief for Respondent, supra note 1, at *27-*29.
n4 See, e.g., Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).
n5 The first few lines of the parties' briefs in the California Supreme Court under-scored the conflicting orientation toward the purpose and
value of Nike's responses to its critics. Kasky began the introduction to his brief with:
Critics put Nike's business at risk by focusing public attention on the sweatshop working conditions in the Southeast Asian factories where it
manufactures its athletic shoes. To fend off critics' boycott calls and maintain its sales, Nike had to appeal to consumers who do not want to
buy products manufactured under inhumane or sweatshop conditions. Nike therefore issued press releases and public letters in which it told
consumers what it knew they wanted to know: that they could buy Nike's athletic shoes with Nike's assurance that the shoes were made not
with sweatshop labor practices, as the critics charged, but with "good" labor practices. But these comforting statements were false. . . . The
ultimate issue on this appeal is whether these false statements are commercial speech.
Brief for Appellant at *1, Kasky v. Nike, Inc., 119 Cal. Rptr. 2d 296 (2000) (No. S087859), available at 2000 WL 1121520.
Nike took a different view and set out the conflict in the first lines of the introduction to its answer brief filed with the California Supreme
Court:
This is not a case about advertisements or salesmanship, in any manner or form. It is about Nike's use of traditional First Amendment channels to participate in an international media debate on issues of public interest, and Plaintiff's unprecedented effort to use the judicial system
as a weapon in the controversy.
Brief for Respondent at *1, Kasky v. Nike, Inc. 119 Cal. Rptr. 2d 296 (2000) (No. S087859), available at 2000 WL 1508256.
n6 See Brief for Petitioners, supra note 1, at *1-*18.
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n7 See Adam Liptak, Nike Move Ends Case Over Firm's Free Speech, N.Y. TIMES, Sept. 13, 2003, at 8A.
n8 See William Baue, The Implications of the Nike and Kasky Settlement on CSR Reporting, SRI WORLD GROUP, INC., available at
http://socialfunds.com/news.article/cgi?sfArticleId=1222 (Sept. 18, 2003); Nike Settles Free Speech' Court Case, BBC NEWS WORLD
EDITION, available at http://news.bbc.co.uk/2/hi/americas/3106930.stm (Sept. 13, 2003); About Us, FAIR LABOR ASSOCIATION,
available at http://www.fairlabor.org/all/about/board.html.
n9 See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 265-266 (1964)(civil rights advertisement); Christ's Bride Ministries, Inc. v.
Southeastern Pennsylvania Transp. Auth., 148 F.3d 242 (3d Cir. 1998) (anti-abortion ads held non-commercial and covered by traditional
First Amendment and public forum analysis); New York Magazine v. Metro. Trans. Auth., 136 F.3d 123, 131 (2d Cir. 1998) (declining to
decide whether the ad in question was commercial speech or "core-protected" speech, but applying traditional First Amendment and prior
restraint analysis because the distinction could not be easily made). See also Children of The Rosary v. City of Phoenix, 154 F.3d 972 (9th
Cir. 1998); Associated Students for Univ. of California at Riverside v. Attorney Gen. of the United States, 368 F. Supp. 11 (C.D. Cal. 1973).
n10 See, e.g., Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973) (upholding order prohibiting newspaper publication of employment advertising in sex designated columns that aided illegal sex discrimination in employment); Ford Motor Co.
v. Texas Dep't of Trans., 264 F. 3d 493 (5th Cir. 2001) (speech elements of Web site advertisements deemed incidental to state regulation of
retail sales of automobiles). See also Borgner v. Brooks, 284 F.3d 1204 (11th Cir. 2002); National Comm'n on Egg Nutrition v. FTC, 570
F.2d 157 (7th Cir. 1977).
n11 See, e.g., Bolger v. Youngs Drug Products, 463 U.S. 60 (1983)(holding unsolicited mailing of advertisements and materials about contraceptives to be commercial speech but protected, and statute prohibiting such mailings to be unconstitutional).
n12 Compare R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), with Virginia v. Black, 538 U.S. 343 (2003) and Illinois ex rel. Madigan v.
Telemarketing Associates, Inc., 538 U.S. 600 (2003).
n13 Recognizing the importance of stare decisis as a principle and its reinforcement of the categorization of commercial speech and the test
in Central Hudson Gas & Electric Corp. v. Public Service Comm'n in particular, 447 U.S. 557 (1986), infra notes 60-67, an alternative solution might be a narrow definition of commercial speech limited to the communicative elements of commercial transactions with no possible
political, social or other overtones or impact. In effect, the doctrine, and its diluted level of constitutional protection, would be limited to the
communications uttered merely to consummate a commercial transaction and nothing more. All other speech with commercial elements
would be protected to the same degree as speech generally. At this level of refinement, one could easily argue the doctrine, though preserved
as a matter of form, would be harmless, if not inconsequential. Thus, should the Supreme Court conclude, as Justice Antonin Scalia suggested in his concurring opinion and response to Justice Clarence Thomas in 44 Liquormart, Inc, v. Rhode Island, that it lacks the "wherewithal to declare Central Hudson wrong" the solution may be the confinement of the doctrine and its test to communications that are integral
to a commercial act and nothing more. 517 U.S. 484, 518 (1996) (Scalia, J., concurring).
n14 See, e.g., Robert Post, Melville B. Nimmer Memorial Lecture, The Constitutional Status of Commercial Speech, 48 UCLA L. REV. 1
(2000); Frederick Schauer, Commercial Speech and the Architecture of the First Amendment, 56 U. CIN. L. REV. 1181 (1988); Nat Stern, In
Defense of the Imprecise Definition of Commercial Speech, 58 MD. L. REV. 55 (1999); Caren Schmulen Sweetland, The Demise of a
Workable Commercial Speech Doctrine: Dangers of Extending First Amendment Protection to Commercial Disclosure Requirements, 76
TEX. L. REV. 471 (1997); William Van Alstyne, Essay, Remembering Melville Nimmer: Some Cautionary Notes on Commercial Speech, 43
UCLA L. REV. 1635 (1996).
n15 See, e.g., Sweetland, supra note 14, at 497-502.
n16 See, e.g., Van Alstyne, supra note 14, at 1639-42.
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n17 See, e.g., Todd F. Simon, Defining Commercial Speech: A Focus on Process Rather than Content, 20 N. ENG. L. REV. 215, 240
(1984-85) ("The Court has intuitively decided that there is something suspicious or different about commercial speech that makes it less deserving of first amendment protection. The difference is that commercial advertising is the most intentional of all speech. It is calculated to
achieve a result.").
n18 See Post, supra note 14, at 54-56 (concluding that from a Meiklejohnian perspective the Supreme Court can refine the Central Hudson
test while preserving the distinction between commercial speech and public discourse that is part of the democratic participatory process of
self-government).
n19 See, e.g., William S. Dodge, Weighing The Listener's Interests: Justice Blackmun's Commercial Speech and Public Forum Opinions,
26 HASTINGS CONST. L. Q. 165 (1998) (arguing for an abandonment of the categorical approach in favor of a balancing approach that is
listener-oriented); Daniel E. Troy, Advertising: Not "Low" Value Speech, 16 YALE L. J. ON REG. 85 (1999) (emphasizing the lack of consistency in the court's approach). See also Daniel Halberstam, Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions, 147 U. PA. L. REV. 771 (1999) (criticizing subordinate status of commercial speech and focusing on speech by professionals); Alan Howard, The Constitutionality of Deceptive Speech Regulations: Replacing the Commercial Speech Doctrine with a Tort-Based
Rational Framework, 41 CASE W. RES. L. REV. 1093 (1991) (arguing the initial determination whether deceptive speech is commercial
and subject to regulation lacks coherent and consistent standards and should be replaced with a relational framework focusing on the relationship between the deceptive speakers and the affected listeners); Rodney Smolla, Information, Imagery, and The First Amendment: A
Case for Expansive Protection of Commercial Speech, 71 TEX. L. REV. 777 (1993). Several articles also focus on specific issues or advertising contexts, including, Sean Costello, Strange Brew: The State of Commercial Speech Jurisprudence Before and After 44 Liquormart,
Inc. v. Rhode Island, 47 CASE WESTERN L. REV. 681 (1997); Michael Hoefges, Protecting Tobacco Advertising Under the Commercial
Speech Doctrine: The Constitutional Impact of Lorillard Tobacco Co., 8 COMM. LAW & POL'Y 267 (2003); Ronald Layer, Tobacco,
Commercial Speech, and Libertarian Values: the End of the Line for Restrictions on Advertising?, 92 AMER. J. PUBLIC HEALTH 356
(2002).
n20 See, e.g., Soontae An, From Business Pursuit to a Means of Expression: The Supreme Court's Disputes Over Commercial Speech from
1942 to 1976, 8 COMM. L. & POL'Y 201 (2003); Tom Garrety, The Submarine, The Handbill, and The First Amendment, 56 U. CIN. L.
REV. 1167 (1988); Alex Kozinski & Stuart Banner, The Anti-History and Pre-History of Commercial Speech, 71 TEX. L. REV. 747 (Mar.
1993); Alex Kozinski & Stuart Banner, Who's Afraid of Commercial Speech?, 76 VA. L. REV. 627 (May 1990).
n21 See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 572 (2000)(Thomas, J., concurring in part); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518 (1996) (Thomas, J., concurring in part).
n22 See, e.g., Kozinski & Banner, Who's Afraid of Commercial Speech?, supra note 20, at 650-52. See also, e.g., Elizabeth Blanks Hindman, The Chickens Have Come Home to Roost: Individualism, Collectivism and Conflict in Commercial Speech Doctrine, 9 COMM. L. &
POL'Y 237 (2004).
n23 See, e.g., C. Edwin Baker, Commercial Speech: A Problem in the Theory of Freedom, 62 IOWA L. REV. 1 (1976); Lillian R. BeVier,
The First Amendment and Political Speech: An Inquiry into the Substance and Limits of Principle, 30 STAN. L. REV. 299, 352-55 (1978);
Thomas H. Jackson & John Calvin Jeffries, Jr., Commercial Speech: Economic Due Process and the First Amendment, 65 VA. L. REV. 1
(1979).
n24 In commenting upon the various generalizations for limiting the degree to which commercial speech is protected, a number of scholars
have stressed the lack of clarity and consensus regarding "the distinction between talk for profit, and talk for other purposes." LAURENCE
H TRIBE, AMERICAN CONSTITUTIONAL LAW 895 (1988). In fact, Professor Laurence Tribe concluded in 1988, following the Court's
problematic decision in Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986), that the Court had left what
had been a somewhat "comfortable, if not always predictable," analysis of commercial speech cases and opened an "unsteady" and uncertain
future. Id. at 904.
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10 Comm. L. & Pol'y 383, *
n25 Many of the articles listed here address the definition of commercial speech and the various tests for identifying it, as distinguished
from other speech, but the problem has not been resolved and was further complicated by the Nike litigation. See Anne Cunningham & Craig
Freeman, On The Wings of Nike: A Streamlined Approach to the Commercial Speech Doctrine, 25 COMM. AND THE L. 1 (Dec. 2003)
(arguing for the elimination of the initial assessment under Bolger v. Youngs Drug Products, 463 U.S. 60 (1983), of public corporate communication, and thus for the presumption that such communications constitute commercial speech, as a means of addressing the blurring of
the line between editorial and commercial speech that occurs in cases such as Nike). See generally Allan Tananbaum, "New and Improved":
Procedural Safeguards for Distinguishing Commercial from Noncommercial Speech, 88 COLUM. L. REV. 1821 (1988) (arguing that the
risk that certain commercial or corporate speech will be chilled or "trammeled" out of a fear that some part of it might be false and thus defined as unprotected requires procedural safeguards similar to those used in obscenity cases).
n26 85 COLUM. L. REV. 449, 484-85 (1985).
n27 Id. at 485.
n28 Id. at 485-89. See also, Stern, supra note 14, at 74-75, for a discussion of the implications of Blasi's argument.
n29 316 U.S. 52 (1942).
n30 425 U.S. 748 (1976).
n31 447 U.S. 557 (1980).
n32 See, e.g, Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986).
n33 316 U.S. at 52.
n34 See Tom Garrety, The Submarine, The Handbill, and The First Amendment, 56 U. CIN. L. REV. 1167, 1167-68 (1988). See also
Chrestensen v. Valentine, 122 F.2d 511, 511-12 (2d Cir. 1941).
n35 316 U.S. at 53.
n36 Id.
n37 Id.
n38 Id. at 54.
n39 Id.
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n40 Soontae An, supra note 20, at 203-06. See also, Kozinski & Banner, Who's Afraid, supra note 20, at 762.
n41 376 U.S. 254 (1964).
n42 Id. at 266.
n43 421 U.S. 809 (1975).
n44 Id. at 822-25.
n45 413 U.S. 376 (1973).
n46 Id. at 380-81.
n47 Id. at 388.
n48 Id.
n49 316 U.S. 52 (1942).
n50 376 U.S. 254, 265-66 (1964).
n51 421 U.S. 809 (1975).
n52 425 U.S. 748 (1976).
n53 Id. at 766-70.
n54 Id. at 760-61.
n55 Id. at 764-65.
n56 Id.
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n57 Id. at 770-73.
n58 See, e.g., Metromedia, Inc. v. City of San Diego, 453 U. S. 490, 505-516 (1981)(discussing commercial speech doctrine and holding
the ban on noncommercial billboards unconstitutional because the ordinance permitted the city to favor commercial subjects over noncommercial, without suggesting noncommercial messages could not be subjected to a content-neutral reasonable time, place and manner restrictions in the form of zoning regardless of the commercial speech doctrine).
n59 316 U.S. 52, 54 (1942). Interestingly, in Valentine, the Court referred to the evident intent of the tour operator to evade the regulations
of the city and used that intent as the rationale for upholding the regulation as applied to him.
n60 447 U.S. 557 (1980).
n61 Id. at 558-61.
n62 Id. at 564-67.
n63 Id. at 566.
n64 Id. at 568-71.
n65 Id. at 561-62 (citations omitted).
n66 Id. at 562-63 (citations omitted).
n67 Id. at 569-72.
n68 478 U. S. 328 (1986).
n69 Id. at 340-42.
n70 Id. at 340.
n71 Id. at 345-46.
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n72 492 U. S. 469 (1989)
n73 Id. at 472.
n74 Id. at 473.
n75 The history of the case makes this clear. The district court found for the university following a trial, holding the dormitory was not a
public forum for commercial activity and that the restrictions on speech were reasonable in light of the purpose of the dormitory. Fox v.
Board of Trustees, 649 F.Supp. 1393 (N.D.N.Y. 1986). The court of appeals reversed, applying the Central Hudson test, and remanded for a
determination whether the restrictions were the least restrictive means of serving the state's asserted interests. 841 F.2d 1207 (2d Cir. 1988).
The Supreme Court reversed by a 6-3 vote and held the state need not show the absolute least restrictive means and that any overbreadth
claim was not ripe. 492 U. S. at 475-85.
n76 See, e.g., Florida Bar v. Went For It, 515 U.S. 618 (1995) (upholding Florida Bar Association rules prohibiting direct-mail solicitation
by attorneys of personal injury victims within thirty days of injury, accident or disaster based on evidence of need to protect privacy interests
of victims and families as documented in bar's two-year study, and various hearing, surveys and public comments); Edenfield v. Fane, 507
U.S. 761 (1993) (striking Florida's ban on in-person solicitation of clients by Certified Public Accountants as unsupported by evidence of increased danger of fraud); United States v. Edge Broadcasting, 509 U.S. 418 (1993) (relying on the congressional interest in supporting
non-lottery states, the Court reversed lower court decisions and upheld a federal statute that permitted only those broadcasters located in
states with legal lotteries to broadcast lottery advertising in the context of advertisements for a Virginia lottery aired by a station located in
North Carolina with approximately 90% of its listeners in Virginia and 10% in North Carolina).
n77 517 U.S. 484 (1996). Justice Stevens delivered the opinion of the Court, but essentially only with regard to the conclusion or result in
the case -- that the Twenty-first Amendment to the Constitution, repealing prohibition, did not license the states to ignore the First Amendment. Justices Scalia, id. at 517; Thomas, id. at 518; and O'Connor, id; at 528, filed separate concurrences. Chief Justice William Rehnquist,
Justice David Souter and Justice Stephen Breyer joined in the concurring opinion of Justice Sandra Day O'Connor.
n78 Id. at 504-12.
n79 Id. at 528 (O'Connor, J., concurring in the judgment).
n80 Id. at 529-30 (citing Board of Trustees, State Univ. of New York v. Fox, 492 U.S. 469 (1989)).
n81 Id. at 528-34 (citing as examples of such closer examination, Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995); Ibanez v. Florida
Dept. of Business and Prof. Regulation, Bd. of Accountancy, 512 U.S. 136 (1994); Cincinnati v. Discovery Network, Inc., 507 U.S. 410
(1993); Edenfield v. Fane, 507 U.S. 761 (1993); Rubin v. Coors Brewing Co., 514 U.S. 476 (1976)).
n82 A majority of the Court did not join Justice Stevens in his conclusion "that Posadas erroneously performed the First Amendment analysis." Id. at 509.
n83 517 U.S. at 509 (Stevens, J., plurality).
n84 Id. at 517-18 (Scalia, J. concurring).
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10 Comm. L. & Pol'y 383, *
n85 Id. at 518-28 (Thomas, J., concurring).
n86 Id. at 518-24 (Thomas, J., concurring).
n87 527 U.S. 173 (1999).
n88 509 U.S. 418 (1993).
n89 Greater New Orleans Broad. Ass'n. v. U.S., 866 F. Supp. 975 (1994), aff'd, 69 F. 3d 1296 (5th Cir. 1995).
n90 69 F. 3d at 1299.
n91 Greater New Orleans Broad., 572 U. S. at 182.
n92 Id. at 183-95.
n93 Id.
n94 533 U.S. 525 (2001).
n95 Id. at 533-37.
n96 Id. at 555-67.
n97 Id. at 561-66.
n98 Id. at 569. The Court did uphold the regulations requiring that retailers place tobacco products behind a counter and requiring customers to have personal contact with a salesperson before handling the products, however. Id.
n99 Id. at 571-72 (Kennedy, J., concurring).
n100 Id. at 572 (Thomas, J. concurring).
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10 Comm. L. & Pol'y 383, *
n101 Id. at 590-605 (Stevens, J., concurring and dissenting).
n102 Id. at 590 (Souter, J., concurring and dissenting).
n103 See supra notes 1-3, 7-8, and accompanying text; infra notes 105-11 and accompanying text.
n104 Brief for Petitioner, supra note 1, at *2.
n105 A sampling of the news media coverage and press releases or reports of various organizations from 1996 through 1998 concerning
Nike and working conditions in its Asian plants includes: 4,000 Workers Violently Protest at Nike Factory, CHICAGO TRIB., Apr. 27,
1997, at 16; Julia Angwin, The Tired Souls Behind Nike's Soles; Indonesian Worker Tells of Suffering, SAN FRANCISCO CHRON., July
26, 1996, at B3; Associated Press, Nike Boots 4 Makers of Its Shoes, CHICAGO TRIB., Sept. 23, 1997, Business section, at 2; Associated
Press, Nike Plants' Workers are Abused, Says Labor Activist, CHICAGO TRIB., Mar. 28, 1997, at 16; William Branigin, Clinton, Garment
Makers Hail Accord on Sweatshops: Critics Say Pact Falls Short on Key Work Issues, WASH. POST, Apr. 15, 1997, at A10; Robin Bulman, Nike's Tainted Cash?, J. OF COMMERCE, July 23, 1996, at 7A; Verena Dobnik, Associated Press, Group Cites Abuses by Nike Subcontractors Inspection Finds Viet Women Being Fondled and Beaten, BOSTON GLOBE, Mar. 28, 1997, at E2; Paula L. Green, Nike, Jordan Challenged on Conditions Indonesian Worker in Court Battle, J. OF COMMERCE, July 25, 1996, at 3A; Steven Greenhouse, Nike Shoe
Plant in Vietnam is Called Unsafe for Workers, N.Y. TIMES, Nov. 8, 1997, at Al; Bob Herbert, In America; Nike's Boot Camps, N.Y.
TIMES, Mar. 31, 1997, at A15; Brad Knickerbocker, Nike Fights Full-Court Press on Labor Issue, CHRISTIAN SCIENCE MONITOR,
Sept. 23, 1997, Business & Money section, at 9; Nike Contractors Accused of Worker Abuse, Assoc. Press, Mar. 29, 1997; Reuters, Nikes
Made By Pre-Teens in Asia?, PHILADELPHIA DAILY NEWS, June 7, 1996, at 25; Reuters, Nike Plant Conditions in Vietnam Hit in Audit,
CHICAGO TRIB., Nov. 10, 1997, at 12; Marc Sellinger, Nike Said To Just Do It -- Brutally, Labor Group Charges Harsh Conditions Persist, WASH. TIMES, Nov. 18, 1998, at B7; Lindsey Tanner, U.S. Activist Targets Nike Shoe Factories; Seeks Support From Superstar Athletes, TORONTO STAR, July 24, 1996, at C8.
n106 Brief for Appellant, supra note 5, at *3.
n107 Among the labor and other organizations publicly criticizing Nike were the Made in the USA Foundation, an organization supported
in large part by labor unions; the Transnational Resource and Action Center, an activist organization based in San Francisco; the Vietnam
Labor Watch; the Hong Kong Christian Industrial Committee; the AFL-CIO, including a youth group and the president of that labor organization; and the Dong Nai Confederation of Labor. See Brief for Petitioner, supra note 1, at *2-8.
n108 Id.
n109 Associated Press, Nike Assails Doonesbury' Depiction, ST. LOUIS POST-DISPATCH, June 7, 1997, at 21; Editorial, Just Lampoon
It, BOSTON GLOBE, May 17, 1998, at E6.
n110 See Brief for Petitioner, supra note 1, at *2. The Young report is also known as the report of Good Works International. See also Aaron Bernstein, Online Extra: Nike's New Game Plan for Sweatshops, BUSINESS WEEK ONLINE, Sept. 20, 2004, available at
http://www.businessweek.com/print/magazine.content/04_38/b3900011 mz001.htm?chan . . .; Sarah Boxer, Digerati Vogues, Caught Midcraze, N.Y. TIMES, May 12, 2005, at B1; Sweatshops: Nike Campaign, GLOBAL EXCHANGE, April 01, 2005, available at
http.//www.global exchange.org/campaigns/sweatshops/nike/.
n111 Summaries of the responses published by Nike may be found in several sources. See, e.g., Kasky v. Nike, Inc., 45 P.3d 243, 248 (Cal.
2002); Brief of the Petitioner, supra note 1, at *2-12.
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n112 See Brief for Petitioner, supra note, at *8-13.
n113 Id. at *2-3.
n114 Id. at *6 ("Kasky does not allege that Nike made a single false or misleading statement in a label or an advertisement of a Nike product, nor that any of the statements in question even referred to any Nike product or its qualities, such as price, suitability for a particular use,
reliability or effect on anyone's health or safety.")
n115 Complaint For Statutory, Equitable and Injunctive Relief filed by the Plaintiff, Marc Kasky (Case No. 994446), available at
http://corpwatch.radicaldesigns.org/print_article.php?&id=3448 (herein, "Superior Court Complaint"). See also Brief for Respondent, supra
note 1, at *4-11.
n116 Id. at *4-6.
n117 Superior Court Complaint, supra note 115, at P 6.
n118 Brief for Respondent, supra note 1, at *5-7.
n119 Kasky noted in his Brief with the Supreme Court, however, that though he sought a nonrestitutionary disgorgement remedy and monies in the Superior Court Complaint, P 34, such a remedy was no longer available under California law. Brief for Respondent, supra note 1,
at *9-10.
n120 See Brief for Petitioner, supra note 1, at *12-13; Brief for Respondent, supra note 1, at *9-11.
n121 CAL. BUS. & PROF. CODE 17200 et seq. (2003).
n122 CAL. BUS. & PROF. CODE 17500 et seq. (2003).
n123 CAL. BUS. & PROF. CODE 17500 (2003).
n124 CAL. BUS. & PROF. CODE 17200 (2003)
n125 See Cortex v. Purolator Air Filtration Products, 999 P.2d 706 (Cal. 2000); State Farm Fire & Casualty Co. v. Superior Court, 53 Cal.
Rptr. 2d 229 (Cal. Ct. App. 1996), abrogated on other grounds, Cel-Tech Communications, Inc. v. Los Angeles Cellular Tel. Co., 973 P.2d
527 (Cal. 1999).
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10 Comm. L. & Pol'y 383, *
n126 CAL. BUS. & PROF. CODE 17203-204 (2003). See also Korea Supply co. v. Lockheed-Martin Corp., 63 P.3d 937, 943-45 (Cal.
2003); Fletcher v. Sec. Pac. Nat'l Bank, 591 P.2d 51, 56-58 (Cal. 1979); South Bay Chevrolet v. General Motors Acceptance Corp., 85 Cal.
Rptr. 2d 301, 310 (Cal. Ct. App. 1999). The California law was amended in 2004 to require that private claimants show standing, including
injury-in-fact and losses resulting from the unfair competition. CAL. BUS. & PROF. CODE 17203-204 (2004).
n127 Cal. Bus. & Prof Code 17500 (2003).
n128 See Day v. AT&T Corp., 74 Cal. Rptr. 2d 55 (Cal. Ct. App. 1998). See also Brief for Petitioner, supra note 1, at *4; Brief for Respondent, supra note 1, at *7-8.
n129 Subject to some differences in characterization, details of the statements challenged by Kasky may be found in the previously cited
published opinions, supra note 1, and the pleadings of both sides. See Brief for Petitioner, supra note, at *5-13; Brief for Respondent, supra
note, at *1-6. See also, Superior Court Complaint, supra note 115, at PP 25, 28, 37, 43, 49, 55, 59.
n130 " Although some of Nike's own statements noted that some consumers consider there ethical issues in making purchasing decisions,
none of the statements at issue appeared in advertising of Nike's products or urged customers to buy those products." Brief for Petitioner,
supra note 1, at *3. See also generally Superior Court Complaint, supra note 115.
n131 See Superior Court Complaint, supra note 115, at PP 15-17; Kasky v. Nike, Inc., 45 P.3d 243, 248 (Cal. 2002).
n132 For example, in the sections of the Superior Court Complaint regarding the alleged misstatements by Nike, there are numerous references to claimed errors "made because [Nike] omitted facts," to what Kasky claimed Nike "did not address" and to disputed statistical analyses (regarding average wages, for example), scientific analysis (regarding air quality, for example) and policy or social issues (the definition of a living wage, for example). Superior Court Complaint, supra note 115, at P 25 (regarding Nike's statements regarding policy and
guidelines it has adopted); 28 (regarding alleged Nike statements of policy regarding compliance with local wage laws); 43 (regarding alleged Nike statements regarding the claimed payment of double minimum wages); 49 (regarding the letter to the editor by Phillip Knight as
published in the New York Times on June 21, 1996); 55 (regarding Nike's use of the GoodWorksInternational Report, which report Kasky
said failed to address other issues); 59 (regarding the disputed definition of a living wage).
n133 The complaint identified nine Nike communications: a two-page letter with the Nike logo from the company's director of Sports
Marketing to university presidents and athletic directors; a thirty-three-page illustrated pamphlet, entitled "Nike Production Primer;" a Nike
Web site posting with its logo; a posted press release on the Nike Web site with the logo; a three-page document on Nike letterhead with the
logo; a press release with the logo; a five-page letter with the logo from the Nike Director of Labor Practices to the CEO of the YWCA of
America; a two-page letter with the logo from Nike's public relations manger for Europe to the International Restructuring Education Network Europe; a letter to the editor of the New York Times from Nike's Chairman and CEO. Brief for Respondent, supra note 1, at *5. The
complaint also referred to another letter from Nike to a leading California newspaper regarding the jobs Nike has helped create throughout
the world and encouraging Christmas shoppers "to remember that Nike is the industry's leader in improving factory conditions." Brief for
Respondent, supra note 1, at *6.
n134 Brief for Respondent, supra note 1, at *4-5. See also Superior Court Complaint, supra note 115, at PP 51-58.
n135 Brief for Petitioner, supra note 1, at *5-12.
n136 Phillip Knight stated in his letter to editor, among other things, that "we have an oversight system that works, and we do our best to
insure that labor abused do not occur." Phillip Knight, Letter to Editor, Nike Pays Good Wages to Foreign Workers, N.Y. TIMES, June 21,
1996, at A26.
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n137 Superior Court Complaint, supra note 115, at paras. 53 & 55.
n138 Kasky v. Nike, Inc., 93 Cal. Rptr. 2d 854 (Cal. App. 1 Dist. 2000).
n139 Id. at 860-61.
n140 Kasky v. Nike, Inc., 45 P.3d 243 (Cal. 2002).
n141 Id. at 257-59.
n142 Id. at 261-62.
n143 Id. at 260-62.
n144 Id. at 263-80 (Chin, J., dissenting); at 268-80 (Brown, J. dissenting).
n145 Id. at 263 (Chin, J., dissenting).
n146 Id. at 269 (Brown, J., dissenting).
n147 Brief for Respondent, supra note 1, at *12.
n148 45 P. 3d at 256-61.
n149 Brief for Petitioner, supra note 1, at *22.
n150 539 U.S. 654 (2003).
n151 Id. at 658-60 (Stevens, J., concurring).
n152 Id. at 661-62 (Stevens, J., concurring).
n153 Id. at 663-65 (Stevens, J., concurring).
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n154 Id. at 663-64 (Stevens, J., concurring) (citations omitted).
n155 Id. at 665 (Kennedy, J., dissenting).
n156 Id. at 665 (Breyer, J., dissenting).
n157 Id. at 667-68 (Breyer, J., dissenting).
n158 Id. at 683 (Breyer, J., dissenting).
n159 Id. at 676 (Breyer, J., dissenting).
n160 Id. (Breyer, J., dissenting).
n161 Id. at 679-80 (Breyer, J., dissenting) (citations omitted). Justice Stevens acknowledged the issues concerning California's private attorney general provisions but found those issues to be evidence of the novelty of the case and the need for further development of the issue
in the state courts. Id. at 664 (Stevens, J. concurring). See supra note 126.
n162 Id. at 676 (Breyer, J., dissenting).
n163 If Nike offered to sell a product or service which itself amounted to political speech (abortions in a state allowing abortions at a time
when others did not, for example), that, too would be a different matter.
n164 A negligence standard in such matters would be least defensible in cases involving advertisements involving matters of public concern, unless the negligent misrepresentation or falsehood was published about and to the damage of an identified private person. See generally Hustler Magazine v. Falwell, 485 U.S. 46 (1988); Gertz v. Welch, 418 U.S. 323 (1974).
n165 Brief for Petitioner, supra note 1, at *37-45.
n166 505 U.S. 377 (1992).
n167 538 U.S. 343 (2003).
n168 505 U.S. at 379-89.
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n169 Id. at 380 (quoting St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis. Code, Section 292.02 (1990)).
n170 315 U.S. 568 (1942).
n171 505 U.S. at 381-82.
n172 Id. at 396.
n173 Id. at 391-92.
n174 Id. at 388.
n175 Id. at 391-92.
n176 The approach taken by Justice Scalia drew criticism from scholars as well as other justices. Scholars criticized the opinion as convoluted and questioned its logic, particularly regarding its analysis of the fighting words doctrine. See Jerome O'Callaghan, Free Speech by the
Light of a Burning Cross, 42 CLEV. ST. L. REV. 215, 235 (1994); Michael S. Degan, "Adding the First Amendment to the Fire": Cross
Burning and Hate Crime Laws, 26 CREIGHTON L. REV. 1109, 1135-45 (1993); W. Wat Hopkins, Cross Burning Revisited: What The Supreme Court Should Have Done in Virginia v. Black and Why It Didn't, 26 HASTINGS COMM. & ENT. L. J. 269, 270-73 (2004). See also
Jeannine Bell, O Say, Can You See: Free Expression By the Light of Fiery Crosses, 39 HARVARD C. R.-L. L. REV. 335 (2004). Five justices joined in the opinion of Justice Scalia. The other four agreed the conviction of R.A.V. should be reversed, but disagreed with the analysis. Justice Byron White, joined by Justices John Paul Stevens, Harry Blackmun and Sandra Day O'Connor, argued that Justice Antonin
Scalia's approach ignored the Court's categorical exceptions jurisprudence by holding government could not proscribe a subset of an excluded category such as fighting words without violating the First Amendment. Id. at 399-400 (White, J., concurring). White would have invalidated the ordinance as overbroad. Id. at 397 (White, J., concurring). Justice Blackmun wrote a brief concurrence in which he echoed Justice White's concerns. Id. at 415 (Blackmun, J., concurring). Justice Stevens, joined in part by Justices White and Blackmun, agreed the law
was unconstitutionally overbroad, but wrote "to suggest the allure of absolute principles has skewed the analysis of both the majority and
Justice White's opinions." Id. at 416-17 (Stevens, J. concurring). He expressed his concerns with Justice White's categorical analysis, but
added that but for its overbreadth the ordinance would have been constitutional because the conduct in question, though it included some
communicative content, "creates special risks or causes special harms [that] may be prohibited by special rules." Id. at 416 (Stevens, J. concurring). For Justice Stevens, the ordinance regulated speech not on the basis of viewpoint, but on the basis of "the harm the speech causes."
Id. at 433 (Stevens, J., concurring) (emphasis in the original).
n177 Va. Code Ann. Section 18.2-423 (1996).
n178 538 U. S. 343, 363-64 (2003).
n179 Of some note is the Court's lengthy discussion of the history of the Klan and the symbolic meaning of a burning cross in American
history. Id. at 353-357. Obviously, there was a considerable difference between a crudely built cross consisting of broken chair legs taped
together by teenagers in R.A.V. and the orchestrated Klan rally in Black with the more sophisticated and menacing cross that measured
twenty-five to thirty feet tall.
n180 505 U.S. at 390-92. It should be noted, however, that in R.A.V., Justice Scalia pointed out various exceptions to this rule, such as content-discriminatory regulations based entirely on "the very reason the entire class of speech at was proscribable" and when the con-
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tent-defined subclass of speech "happens to be associated with particular secondary effects' of the speech," thus justifying it without reference to its content. Id. at 388-89. In Virginia v. Black, Justice O'Connor, for the majority, addressed this same issue and concluded that
R.A.V. did not hold that the First Amendment prohibits all forms of content-based discrimination within a particular class of speech such as
fighting words or true threats that could be banned entirely. 538 U.S. at 359-63. Therefore, the Court held a state could ban particular types
of threats within the category of true threats. Id. at 362-63. Justice Thomas dissented because he concluded that cross-burning was not expressive conduct and not entitled to First Amendment protection. Id. at 388-400 (Thomas, J., dissenting). Justice Souter, joined by Justices
Kennedy and Ginsburg, dissented in part, and argued the entire statute was unconstitutional as a content-based discrimination because it singled out a particular symbol associated with a viewpoint and thus amounted to official suppression of ideas. Id. at 380-87 (Souter, J., concurring and dissenting). Justice Stevens concurred and argued that cross burning with intent to intimidate "unquestionably qualifies as the
kind of threat that is unprotected by the First Amendment." Id. at 368 (Stevens, J., concurring). Justice Scalia concurred in part and dissented
in part because he agreed Virginia could proscribe cross burning with intent to intimidate, but he wanted to vacate the judgment and remand
for further construction of the prima facie evidence provision, which he did not see as necessarily invalid on its face. Id. at 368 (Scalia, J.,
concurring and dissenting). Consequently, the discussion of fighting words or true threats was an integral part of the Court's holding, but the
threshold question was the distinction between the suppression of expression and the suppression of threats as statutory purposes. It was that
distinction that differentiated the dissenters from the majority. The Court did not settle the question whether cross-burning was or was not
protected political speech, but adopted what one scholar has described as a bifurcated, compromise approach rather than simply holding
cross burning was protected political speech and any regulations of it would have to satisfy the strict scrutiny test. See Hopkins, supra note
176, at 308-15.
n181 538 U.S. 600 (2003).
n182 Id. at 611-12.
n183 Id. at 623-24.
n184 Id. at 617. See also Riley v. Nat'l Federation of Blind of N.C., Inc., 487 U.S. 781, 800 (1988); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 961 (1984); Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980).
n185 Id. at 620-27.
n186 Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969).
n187 Cohen v. California, 403 U.S. 15 (1971).
n188 Brown v. Louisiana, 383 U.S. 131 (1966).
n189 See United States v. O'Brien, 391 U.S. 367 (1968).
n190 Id. at 376-77.
n191 See TRIBE, supra note 24, at 789-804.
n192 See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).
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n193 See generally Texas v. Johnson, 491 U.S. 397 (1989) (invalidating Texas statute prohibiting desecration of the American flag as a
statute targeted at suppressing expression based on offensiveness of the idea expressed); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)
(allowing regulation of nude dancing if regulation targeted at social order and morality, not expression).
n194 See Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600 (2003)(proof of elements of fraud); Virginia v. Black,
538 U.S. 343 (2003)(proof of intent to intimidate).
n195 As Justice Scalia stated in R.A.V. v. St. Paul: "The point of the First Amendment is that majority preferences must be expressed in
some fashion other than silencing speech on the basis of its content." 505 U.S. 377, 392 (1992).
n196 See, e.g., First National Bank of Boston v. Bellotti, 435 U.S. 765, 785 (1978). See also Jeffrey Fisher, Nike v. Kasky: Will The Shield
of the Commercial Speech Doctrine Become the Sword?, 20 COMM. LAW. 1 (Winter 2003).
n197 See, e.g., Halberstam, supra note 19.
n198 Virginia State Board of Pharmacy v. Virginia Citizens Council, 425 U.S. 748 (1976).
n199 See TRIBE, supra note 24, at 794-96. See also First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
n200 See, e.g., City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 433-34 (2002); Watchtower Bible and Tract Soc'y of New York
v. Vill. of Stratton, 536 U.S. 150, 165-69 (2002); Simon & Schuster, Inc. v. Members of the N. Y. State Crime Victims Bd., 502 U. S. 105,
115 (1991); Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987).
n201 See United States v. Schiff, 379 F.3d 621 (9th Cir. 2004) (focusing on the disputed definition of commercial speech as opposed to political speech, rather than focusing on tax evasion and the underlying argument that the defendants' publication aided such tax evasion).
n202 See TRIBE, supra note 24, at 832-41.
n203 See supra notes 14-18 and accompanying text.
n204 See, e.g., Kozinski & Banner, Who's Afraid of Commercial Speech?, supra note 20.
n205 See Illinois ex rel. Madigan v. Telemarketing Assoc., Inc., 538 U.S. 600 (2003).
n206 See, e.g., Gelb v. American Tel. & Tel. Co., 813 F. Supp. 1022 (S.D.N.Y. 1993).
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n207 See, e.g., United States v. Universal Mgmt Servs., Inc., 191 F. 3d 750 (6th Cir. 1999).
n208 See, e.g., City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (holding that a city may rely on law enforcement study
regarding crime in areas of high concentration of adult oriented businesses to support ordinance establishing minimum distances between
stores and capping number of stores per location); Renton v. Playtime Threatres, Inc., 475 U.S. 41 (1986) (holding that a city may use zoning regulations aimed at decreasing crime associated with adult-oriented businesses without satisfying strict scrutiny even though the ordinance identifies the crime problem with reference to the speech exercised in the adult establishments, provided alternative channels are substantially undiminished); Metromedia, Inc., v. City of San Diego, 453 U.S. 490 (1981) (city zoning regulations of billboards supported by
substantial government interests, but flawed and unconstitutional as a result of exceptions banning noncommercial advertising where commercial advertising would be permitted by the city).
n209 See, e.g., Virginia v. Black, 538 U.S. 343 (2003).
n210 See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).
n211 Id.
n212 Consider as one example the ordinance in Pittsburgh Press, which the Supreme Court noted made it "unlawful for any person . . . to
aid . . . in the doing of any act declared to be an unlawful employment practice." Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 399 (1975). The issue was not expression, but the placement of want ads that indicated by way of newspaper section
headings the existence of illegal hiring preferences by the advertiser and thus aided the commission of an illegal act. The Court examined
this advertising practice as a commercial act, not as expression, though the use of words and thus a form of communication was incidental to
the commercial act.
n213 See, e.g., Virginia v. Black, 538 U.S. at 364-67 (invalidating as unconstitutional the provision of the statute making cross-burning
prima facie evidence of intent to intimidate).
n214 A typical objection to this approach might ask if the distinction between commerce (the act) and speech is any clearer than the prevailing attempts to distinguish commercial speech from other speech. There will be arguments over the drawing of the line, but the key will
include the identification of an underlying transaction, the intent of the speaker and the meaning of the communication.
n215 A claim that a manufacturer advertised false prices or otherwise injured consumers of the relevant goods is distinct from the concern
often raised regarding paternalistic regulations "in which the government's asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace." 44 Liquormart v. Rhode Island, 517 U.S. 484, 518 (1996) (Thomas, J., concurring). As Justice Thomas has argued, it is hard to imagine why strict scrutiny would not apply to a law limiting access to information
about a legal product directed toward a legal user. Id. at 523-28 (Thomas, J., concurring).
n216 Nike's status as a public figure for defamation purposes is virtually undeniable. See Porous Media Corp. v. Pall Corp., 173 F. 3d 1109
(8th Cir. 1999); Snead v. Redland Assocs. Ltd, 993 F.2d 1325 (5th Cir. 1993); Schiavone Construction Co. v. Time, Inc., 847 F.2d 1069 (3d
Cir. 1988); Bose Corp. v. Consumers Union of United States, 692 F.2d 189 (1st Cir. 1982), aff'd, 466 U.S. 485 (1984); National Life Ins. Co.
v. Phillips Publ'g, Inc., 793 F. Supp. 627 (D.Md. 1992). See generally Curtis Publ'g Co. v. Butts, 388 U.S. 130 (1967).
n217 See, e.g., First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations,
413 U.S. 376 (1973).
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n218 This is not intended to suggest that some conduct should not be deemed expressive and protected by the First Amendment, as in such
cases as Texas v. Johnson, 491 U.S. 397 (1989) and Cohen v. California, 403 U.S. 15 (1971). Rather, expressive conduct should be included
within the scope of the term "speech" as a subset of expression. In fact, the approach of the courts to expressive conduct (that is, the analysis
employed to determine whether the conduct is sufficiently expressive to be within the scope of the First Amendment -- as opposed to be
mere conduct), is consistent with the suggested approach to determining whether the speech is a commercial matter or a first amendment
matter. See generally United States v. O'Brien, 391 U.S. 367 (1968).
n219 This approach is not simply an attempt to distinguish commerce from speech. At times commercial conduct will include communicative elements -- like the advertisement of prices -- but the actor will intend only to transact commerce and any recipient would have an understanding consistent with that intent. The communicative elements will be relevant only as elements of the transaction, unless the government has regulated those elements or the transaction for the purpose of suppressing expression. Here again, intent is an issue, but it is the intent behind the regulation, not the intent of the actor/speaker. Although states may, within limits, regulate commerce, the courts have found
that states have adopted and enforced certain commercial regulations of purely commercial messages (those offering to enter into a transactions, those posting prices and the like) for the purpose of suppressing public discourse or, more accurately in some cases, for the purpose of
keeping the public ill-informed (even about commercial issues) and not for the purpose of regulating commercial activity within the state's
jurisdiction. See Virginia State Bd. of Pharmacy v. Virginia Citizens Council, 425 U.S. 746 (1976) (invalidating suppression of price-related
advertising); Bigelow v. Virginia, 421 U.S. 809 (1975) (invalidating suppression of information about legal abortions). In such cases, the
Supreme Court has struggled to arrive at a working First Amendment test for what has been loosely termed commercial speech. If commercial speech was defined by a narrow class of cases involving speakers intending only to transact commerce, the category might be harmless.
Unfortunately, history and the Nike litigation show the category has been interpreted more broadly and has swept into its ambit expression
speech that has broader social implications and is not merely a component of commerce. The result has been greater regulation of speech
than otherwise would be constitutional. The First Amendment would be better served by simply acknowledging that some commerce, as is
true of some other forms of conduct, may be deemed expressive and some regulations of commerce may have a purpose that must satisfy the
same test as would protect other expression under the First Amendment.
n220 The Nike v. Kasky litigation twisted the commerce-regulated-to-suppress-discourse problem faced by the Court in such cases as Virginia State Board of Pharmacy and Bigelow. Because the communications at issue in Nike included no offers to sell and because the plaintiff
stipulated he personally suffered no injury, the Nike case involved speech and implicated commerce in an indirect way only. As a result, Nike amounted to discourse suppressed to regulate commerce. The end result may be the same, but the starting points are different. In the former, the state's regulation is unconstitutional because it regulates a commercial act as a means of limiting public discourse -- without any
reason grounded in the falsity or deceptiveness of any element of the transaction or grounded in the state's law. In a Nike-like situation, the
state is not regulating a commercial act, but is regulating discourse as if it were a commercial act. In both situations, courts should inquire
into the purpose behind the regulation or law (be it an administrative prohibition, private claim, or criminal sanction) as well as the proof of
the applicable elements, including the intent of the actor/speaker. The content of the speech should be relevant only to the extent there is
some recognized claim for defamation, invasion of privacy, or other cognizable injury or if it is evidence of the prohibited act.
n221 Consider two hypothetical conversations between chief executive officers of competing producers of a product. If they discuss the
political and economic pros and cons of the antitrust laws, including the rules against price-fixing among competitors, and even advocate
changes in those laws to allow coordination of prices, one could reasonably argue such a conversation is protected by the First Amendment.
The minute the two agree or attempt to agree to fix their prices, however, no one would seriously argue that the conversation is anything
other than a possible crime, not speech in a constitutionally protected sense. The line between the two is, of course, shifting and at times unclear. That fact that expression is used in the protected former example and in the unprotected latter example is mere coincidence. The criminal act or transaction is different from expression protected by the constitution. The speech in the unprotected example is uttered to accomplish the act and it is perhaps evidence of intent. Even if the act of fixing prices is not consummated, there may still be an attempt or conspiracy to engage in the criminal conduct. The antitrust laws do not target expression directly, but only incidentally and in the course of targeting behavior within the constitutional power of government. The laws do not target expressions of ideas about or disagreements with the
laws themselves or any other matter. The crime is the act or the conduct which just happens to be accomplished through some form of communication. The communication does not make it a First Amendment matter. The same applies in other contexts such as regulations of deceptive trade practices, foods, drugs, fraud, and other similar matters. See generally STANLEY FISH, THERE'S NO SUCH THING AS
FREE SPEECH 102-19 (1994).
n222 This approach as generally applied in expressive conduct case, from flag to cross burning, is distinguishable, albeit with some potential confusion, from speech deemed a form of conduct, including fighting words. The confusion results from the uncertain definition of
"fighting words" as an identifiable category of speech.
n223 See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 569-571 (2001) (upholding certain indoor display regulations under an essentially intermediate standard and striking other outdoor advertising regulations related to tobacco for either failing to directly advance the
asserted governmental interest or being more extensive than necessary, citing Central Hudson Gas & Electric Corp. v. Public Service Com-
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10 Comm. L. & Pol'y 383, *
mission, 447 U.S. 557 (1980)); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (upholding zoning ordinance prohibiting adult
motion picture theaters within 1,000 feet of residential areas and certain other land uses).
n224 See Jeffrey Fisher, Nike v. Kasky: Will The Shield of the Commercial Speech Doctrine Become the Sword?, 20 COMM. LAW. 1
(Winter 2003).
n225 With due deference to the pop-diva, Madonna, the lyrics are, in part, "Living in a material world, I am a material girl." Madonna,
Material Girl (Sire Records 1985) Should current pop music be deemed a questionable source for this otherwise self-evident point, one need
only harken back to Samuel Johnson, who said, according to JAMES BOSWELL, THE LIFE OF SAMUEL JOHNSON 209 (1979): "No
man but a block-head ever wrote except for money."
n226 This approach may be viewed as disfavoring paternalistic government or at least paternalism fulfilled in part by legislative resort to
intellectual and political shortcuts, if not disingenuous pretense. If one argues that commercial speech should be disfavored as a category to
allow government to promote the general welfare by regulating advertising to control demand for anything from alcoholic beverages to tobacco or gambling, one begs the question about government's failure to address those asserted problems directly and without suppressing
expression. The people through legislatures and the political processes can, for example, pass laws regulating the sale of various problems,
making some products or services illegal, prohibiting sales to minors, or imposing taxes and other requirements. In short, all of those tools
will remain available to protect the general welfare, even if the tempting crutch of regulating speech about otherwise legal products or services is constrained by the same First Amendment that protects other speech.
n227 Kasky v. Nike, Inc., 45 P.3d 243, 261 (Cal. 2002).
n228 See, e.g., New York Times v. Sullivan, 376 U.S. 254, 271 (1964).
n229 The suggestion that the core of the commercial speech doctrine is "speech that does no more than propose a commercial transaction.'"
is often cited, but rarely helpful. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 66 (1983) (quoting Virginia State Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc. 425 U.S. 748, 762 (1976), quoting Pittsburgh Press Co. v. Human Relations Comm'n, 413
U.S.376, 385 (1973)). If that is the core of the doctrine, it is hallow or merely duplicative of other laws that are not aimed at or preoccupied
with expression.
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7 of 8 DOCUMENTS
Copyright (c) 2003 Lawrence Erlbaum Associates, Inc.
Communication Law and Policy
Summer, 2003
8 Comm. L. & Pol'y 267
LENGTH: 22059 words
ARTICLE: Protecting Tobacco Advertising Under the Commercial Speech Doctrine: The Constitutional Impact of Lorillard Tobacco Co.
NAME: MICHAEL HOEFGES *
BIO:
* Assistant Professor, Department of Advertising, University of Tennessee.
SUMMARY:
... Since 1980, the Supreme Court of the United States has utilized a unique and complex test of intermediate constitutional scrutiny when commercial speech regulations are challenged on First Amendment grounds. ... "No differences
between commercial speech and other protected speech justify suppression of commercial speech in order to influence
public conduct through manipulation of the availability of information," he wrote. ... The appeals court concluded that
the cigarette advertising restrictions governed only the "location" of advertising--similar to a zoning regulation--and did
not interfere with the labeling and advertising scheme set up by Congress in the FCLAA. ... In addition, the decision
effectively places tobacco advertising on the same constitutional level as advertising for other lawful goods and services
under the First Amendment and creates a strong likelihood that laws restricting the flow of protected commercial speech
in order to manipulate consumer behavior are likely to be struck down as unconstitutional despite a compelling regulatory interest such as protecting the health of minors. ... Provisions in this proposed legislation also seek to remove the
federal pre-emption provisions of the FCLAA and enact the FDA's 1996 tobacco advertising and promotion regulations
as federal law. ...
HIGHLIGHT: Since 1980, the Supreme Court has used a complex form of intermediate constitutional scrutiny--the
Central Hudson analysis--when government regulations of commercial speech are challenged on First Amendment
grounds. In Lorillard Tobacco Co. v. Reilly, the Court used this analysis for the first time to test the constitutionality of
government restrictions on tobacco advertising. This article reviews the Court's commercial speech doctrine including
previous treatment of governmental attempts to restrict harmful product advertising. The article then provides an overview of the national regulatory framework for tobacco advertising and analyzes the Supreme Court's 2001 opinion in
Lorillard Tobacco. The article then explores the impact of the case on the Court's commercial speech doctrine and in
subsequent lower court opinions.
TEXT:
[*267] Since 1980, the Supreme Court of the United States has utilized a unique and complex test of intermediate
constitutional scrutiny when commercial speech regulations are challenged on First Amendment grounds. Established in
1980 in Central Hudson Gas & Electric Corp. v. Public Service Commission n1 this test--known as the Central [*268]
Hudson analysis--has been applied by the Court with varying degrees of rigor, as noted by several legal commentators.
n2
For instance, writing recently in the UCLA Law Review, one commentator called Court's commercial speech doctrine
a "notoriously unstable and contentious domain of American jurisprudence," stating that "no other realm of First
Amendment law has proved as divisive." n3
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8 Comm. L. & Pol'y 267, *
Over the last two decades, the level of First Amendment protection for advertising has plummeted to nearly
non-existent n4 and, more recently, has risen to its highest level, rendering it difficult for the government to constitutionally regulate truthful and non-deceptive advertising. n5 Arguably, the Court's recent commercial speech decisions
have nearly eliminated the gap between commercial speech and fully protected non-commercial speech under the hierarchy of expression established by the Court. n6
In recent cases, the Supreme Court employed an increasingly rigorous version of the Central Hudson analysis to
strike down federal restrictions on beer label content, n7 state restrictions on retail price liquor advertising, n8 and federal restrictions on broadcast advertising for casino gambling. n9 As commentators have pointed out, these cases involved so-called "vice" advertising for products and activities that are legal for adults but carry harmful secondary effects for society, including minors. n10 The Court's approach in these cases departed [*269] significantly from its
approach in earlier vice advertising cases in which the Court had rejected constitutional challenges to gambling advertising laws. n11
In Lorillard Tobacco Co. v. Reilly, n12 decided in 2001, the Court addressed for the first time the constitutionality
of state restrictions on retail tobacco advertising. The Lorillard Tobacco Court utilized a combination of federal
pre-emption principles and the Central Hudson analysis to strike down state regulations that served to ban most outdoor
and point-of-sale tobacco advertising. The justices split on several of the key rulings in the case, and Justice Sandra Day
O'Connor, who wrote the majority opinion, was quoted stating that readers would need a "roadmap" to follow their
votes. n13 However, she assured onlookers that there was a majority of the Court for each part of the decision. n14
The Lorillard Tobacco opinion is significant on a number of points to the development of the commercial speech
doctrine and to efforts by the government to regulate harmful product advertising. The case has legal and historical significance as the first in which the Supreme Court decided the constitutionality of an advertising restriction aimed at
protecting children, and the first in which the Court directly decided the constitutionality of government attempts to
restrict tobacco advertising. From a broader constitutional perspective, the case is important as reaffirmation of the
Central Hudson analysis as constitutional doctrine despite concerns about its continued validity among members of the
current Court. From a legislative perspective, the case is also significant for stringently interpreting the federal
pre-emption provisions of the Federal Cigarette Labeling and Advertising Act (FCLAA) n15 in a manner that [*270]
severely limits the legal capacity of states to regulate cigarette advertising absent further revision to the FCLAA by
Congress.
This article first explores the commercial speech doctrine with emphasis on recent Supreme Court decisions leading
to Lorillard Tobacco. Next, it sets out the national regulatory framework for tobacco advertising, which provides relevant context for the subsequent discussion and analysis of the Lorillard Tobacco case. The article then analyzes the
Court's Lorillard Tobacco opinion and traces its progeny in lower federal and state court cases. Finally, the article provides analysis of the impact of Lorillard Tobacco on the commercial speech doctrine and seeks to derive the parameters
of constitutionally permissible government regulation of protected commercial speech.
THE COMMERCIAL SPEECH DOCTRINE AND CENTRAL HUDSON ANALYSIS
In the early 1970s, the Supreme Court had not fully assimilated advertising into the First Amendment as a form of
constitutionally-protected speech. n16 In 1976, the Court decided Virginia State Board of Pharmacy v. Virginia Citizens
Consumer Council, Inc., n17 and shifted its position. In Virginia State Board, the Court ruled for the first time that pure
commercial speech--meaning expression that does no more than "propose a commercial transaction"--is protected by
the First Amendment, albeit not as fully as non-commercial political and social speech. n18 The Virginia State Board
Court grounded its rationale on the informational value of advertising to consumers and found this to be a significant
First Amendment interest. For instance, the Court stated: "Advertising, however tasteless and excessive it sometimes
may seem, nonetheless is the dissemination of information as to who is producing and selling what product and for what
reason." n19
In Virginia State Board, the Court struck down a Virginia regulation that banned state-licensed pharmacists from
advertising prescription drug prices to consumers. For the first time, the Court held specifically that the First Amendment protects not only a commercial [*271] speaker's right to speak but also the public's right to receive commercial
information. Writing for the Court, Justice Harry A. Blackmun stated:
So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large
measure will be made through numerous private economic decisions. It is a matter of public interest that
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those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable. n20
The Court was far more generous in its constitutional treatment of pure commercial speech in Virginia State Board
than in prior decisions, yet still did not extend full First Amendment protection to commercial speech. As Justice
Blackmun pointed out, the Virginia State Board opinion still allowed government to regulate commercial speech more
extensively than non-commercial political and social speech. n21 In addition, the Court specifically refused First
Amendment protection for false or deceptive commercial speech or commercial speech proposing an illegal transaction,
and thus segregated protected and unprotected commercial speech based on these criteria. n22 After Virginia State
Board, the government remained largely unrestricted to regulate unprotected commercial speech. n23 Still, the Virginia
State Board decision remains significant for extending First Amendment protection to pure commercial speech that
proposes a legal transaction and is truthful and non-deceptive. n24
[*272] Establishment of the Central Hudson Analysis
The Virginia State Board Court did not specifically address the constitutional parameters of permissible government regulation on protected commercial speech. However, the Court faced that issue in Central Hudson in striking
down a New York state regulation that prohibited public utility companies from using promotional advertising that encouraged energy consumption. n25 In doing so, Justice Lewis F. Powell, Jr., writing for the Court, set out a four-factor
analysis to test the constitutionality of government restrictions on commercial speech:
[First], we must determine whether the expression is protected by the First Amendment. For commercial
speech to come within that provision, it at least must concern a lawful activity and not be misleading.
[Second], we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must [third] determine whether the regulation directly advances the governmental interest asserted, and [fourth] whether it is not more extensive than is necessary to serve that interest. n26
Applying this four-step analysis to the regulation at issue, the Court concluded that the power company's advertising was protected commercial speech and thus applied the final three factors. n27 Under the second factor, the Court
concluded that New York had demonstrated sufficiently "clear and substantial" regulatory interests in promoting energy
conservation and fair and efficient utility rates. n28
Applying the third factor, the Court found that the state's ban directly advanced the goal of energy conservation. n29
Based on the assumption that promotional utility advertising would stimulate [*273] consumer demand, the Court
concluded that banning advertising would have the opposite effect. n30 Justice Blackmun--who had written the majority
opinion in Virginia State Board--disagreed with the majority that an advertising ban was a constitutional means for the
state to promote energy conservation. n31 He noted that the majority had not cited any empirical evidence in concluding
that advertising bans effectively curb consumer demand and consumption. n32 Ultimately, the majority found the ban
was not narrowly tailored under the fourth prong because New York had not proven that "less speech restrictive" means
were unavailable or ineffective. n33 So, the evidentiary issue under the direct advancement factor was not dispositive.
The Central Hudson opinion is significant for establishing the four-factor analysis. The opinion is also remarkable
because the Court clearly recognized the strong public policy interest in protecting free flowing commercial information, extending that rationale from its Virginia State Board opinion. n34 On this point, Justice Powell, wrote:
The First Amendment ... protects commercial speech from unwarranted governmental regulation. Commercial expression not only serves the economic interest of the speaker, but also assists consumers and
furthers the societal interest in the fullest possible dissemination of information. ... We have rejected the
'highly paternalistic' view that government has complete power to suppress or regulate commercial
speech. n35
[*274] Three justices disagreed with the majority approach in Central Hudson. In a concurring opinion joined by
Justice William J. Brennan, Jr., Justice Blackmun wrote that non-misleading advertising should receive full First
Amendment protection--similar to non-commercial political and social speech--when the regulatory motive is to keep
people ignorant on consumer protectionism grounds. n36 "No differences between commercial speech and other protected speech justify suppression of commercial speech in order to influence public conduct through manipulation of the
availability of information," he wrote. n37 On the other end of the spectrum, Justice William H. Rehnquist dissented,
concluding that the majority approach would "unduly impair" the ability of government to enact economic regulations.
n38
However, despite these opposing concerns, the four-factor analysis was adopted by the Supreme Court as the appro-
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8 Comm. L. & Pol'y 267, *
priate form of intermediate constitutional scrutiny for government regulations of commercial speech and has been utilized by the Court ever since. n39
[*275] Typically, once the Court has determined that a regulation restricts protected commercial speech under
the first Central Hudson factor, it has been fairly liberal in finding that an asserted government interest is sufficiently
"clear and substantial" under the second factor. Leading up to the Lorillard Tobacco decision, the Court had accepted
asserted interests in promoting traffic safety and city aesthetics in zoning cases, n40 protecting family privacy regarding
birth control in a contraception direct-mail advertising case, n41 protecting the public "health, safety, and welfare" in
gambling and alcohol advertising and labeling cases, n42 protecting the gambling policies of individual states in gambling advertising cases n43 and preventing fraud and protecting individual privacy in lawyer and accountant solicitation
cases. n44 Indeed, to date the Court has only found two asserted regulatory interests insufficient under the second Central Hudson factor: shielding recipients from mail they might find "offensive" n45 and preserving general "state authority" over alcohol sales and marketing. n46
Instead, most of the Court's commercial speech decisions applying the Central Hudson test have turned on application of the third and fourth factors. As previously indicated, these require the government to demonstrate that the challenged regulation "directly advances" the regulatory interest, and that the government has selected a regulatory means
that is "not more extensive than necessary" to achieve its goals. Leading up to the Lorillard Tobacco opinion, [*276]
these requirements proved problematic in application as evidenced by inconsistency in Supreme Court opinions.
Third Central Hudson Factor: The "Direct-advancement" Requirement
The Central Hudson Court held that the third factor focuses on the "relationship" between the asserted government
interest and the challenged advertising regulation. n47 In Edenfield v. Fane, n48 decided in 1993, the Court seemed to
tighten the requirements of the third factor and then apply even more stringent versions in Rubin v. Coors Brewing Co.
n49
in 1995, 44 Liquormart, Inc. v. Rhode Island n50 in 1996 and Greater New Orleans Broadcasting Association v.
United States n51 in 1999. However, in 1995, in Florida Bar v. Went For It, Inc., n52 the Court applied a looser version
that seemed to veer from the mandate in Edenfeld. The Court split dramatically on the application of the third factor in
Went For It and would do so again in the Lorillard Tobacco opinion.
In Edenfeld, the Supreme Court struck down a Florida regulation that prohibited in-person solicitations by
state-licensed certified public accountants. n53 In an opinion written by Justice Anthony M. Kennedy, the Court held
that the Florida ban was unconstitutional under the third Central Hudson factor because there was no evidence in the
record that the regulation advanced the state's interest in preventing fraud and overreaching by CPAs. n54 Justice Kennedy wrote that the third factor--which he called the "penultimate prong of the Central Hudson test"--required the government to demonstrate that its regulation advanced the asserted regulatory interest in a "direct and material way." n55
He explained: "This burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to
sustain a restriction on commercial speech must demonstrate that the harms are real and that its restrictions will in fact
alleviate them to a material degree." n56
[*277] In Coors Brewing, the Court unanimously struck down a federal law that prohibited alcohol content percentage information in beer labeling. n57 The government argued that the ban was needed to keep beer manufacturers
from marketing products on the basis of alcohol strength, which the government asserted would lead to increased consumption of high-alcohol beer and harmful secondary effects such as increased rates of alcoholism. n58 Although the
Court ruled that the government had a sufficiently substantial interest in curbing problems related to excessive alcohol
consumption, the Court concluded that the regulation did not directly advance the asserted interest under the third Central Hudson factor. First, the Court found that the ban was part of an irrational regulatory scheme that forbade alcohol
content information in beer labeling but allowed and mandated it for wine and liquor labeling and advertising. n59 Second, the Court found no evidence in the record proving or even suggesting that lifting the ban would lead to strength
war marketing. n60 Thus, the Court concluded that the government had not satisfied its burden of proving "direct advancement" under Central Hudson. n61
In 44 Liquormart, the Court struck down a Rhode Island law that had for years banned retail price advertising for
liquor. n62 The state claimed that the ban helped promote temperance, arguing that liquor price advertising would lead
to price competition among retailers, lower liquor prices, and, ultimately, increased alcohol consumption. n63 In the
principal opinion, written by Justice John Paul Stevens, the Court accepted Rhode Island's regulatory interest of encouraging temperance as sufficiently substantial, but found the state had failed to present any evidence of the ban's effectiveness in curbing overall liquor consumption. n64 Indeed, Justice Stevens pointed out, the evidence in the record
actually suggested otherwise. n65
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[*278] In Greater New Orleans Broadcasting, the Court struck down part of a federal regulation that banned
broadcast advertising for casino gambling. n66 In doing so, the Court held that the ban was unconstitutional as applied
to broadcast licensees in states that had legalized gambling even though the government had a sufficiently substantial
regulatory interest in reducing excessive gambling and associated social harms. n67
Ultimately, the Court held that the broadcast advertising ban failed the third Central Hudson factor because it was
too "pierced with exemptions and inconsistencies" to directly advance the government's regulatory goal. n68 Writing for
the Court, Justice Stevens pointed out that the ban did not apply to casinos operated by Native Americans or non-profit
organizations, or to state-run lotteries. In addition, Justice Stevens wrote, the government had not provided clear evidence of a causal connection between broadcast advertising and the harmful effects of gambling. n69 However, Justice
Stevens said it was unnecessary to determine whether the lack of evidence was fatal to the government's case under the
third factor because the regulatory scheme was too irrational to be otherwise salvaged. n70
The Court dealt for the first time with the sufficiency of an evidentiary record under the third Central Hudson factor in Went For It. n71 In that case, the Court, by a 5-4 vote, upheld a Florida state restriction on targeted, direct-mail
solicitations by lawyers to accident victims within thirty days of their accidents. n72 Florida argued that the thirty-day
ban served to protect the privacy of accident victims and reputations of lawyers, n73 which the Court found to be sufficiently substantial regulatory interests under the second Central Hudson factor. n74
Under the third Central Hudson factor, the Went For It Court accepted Florida's summaries of empirical and qualitative studies of lawyer advertising as sufficient evidence of direct advancement. n75 [*279] For example, in one
survey summarized by Florida, more than half of the adult respondents reportedly agreed that contacting accident victims is a privacy invasion. n76 In another summarized survey, approximately 25% of responding accident victims reportedly agreed the solicitations they received were an invasion of their privacy and lowered their opinions of lawyers
and the judicial system. n77
Writing for the 5-4 majority, Justice O'Connor concluded that Florida's summaries were sufficient to prove direct
advancement and that the Court did not need to review the actual studies. n78 She found it persuasive that Florida's key
study was commissioned by a nationally known consulting firm and pointed out that in prior speech restriction cases,
the Court had allowed the parties to refer to studies without proving their methodological soundness. n79 In speech cases, she wrote, empirical data did not need to be presented with a "surfeit of background information" to be given weight.
n80
In a sharp dissent, Justice Kennedy chastised the majority for not demanding better proof from Florida before upholding the thirty-day solicitation ban, concluding that the Court had no way of verifying such things as sample size,
statistical universe or survey methodology of the studies upon which Florida had relied. n81
After the Greater New Orleans Broadcasting decision, it seemed clear that the Court would not tolerate legislative
irrationality under the third Central Hudson factor and would strike down regulations of protected commercial speech
on that ground. Otherwise, the Court seemed to be demanding evidence that a regulation of protected commercial
speech was efficacious in meeting the asserted regulatory goal. Even so, as the Went For It case suggests, the Court
remained deeply divided on the quantity and quality of the evidence needed to meet the burden of proving direct advancement. This issue is important. In the Lorillard Tobacco case, the Court would again split on the issue of the sufficiency of evidence needed to establish [*280] "direct advancement" under the Central Hudson analysis like it had in
Went For It, with both opinions written by Justice O'Connor.
Fourth Central Hudson Factor: The "Narrowly-tailored" Requirement
The fourth step in the Central Hudson analysis examines whether a regulation of commercial speech is "more extensive than ... necessary" to achieve the asserted regulatory interest. n82 As Justice Powell wrote for the Court in Central Hudson, the "regulatory technique may extend only as far as the interest it serves." n83 In addition, he concluded
that complete bans on commercial speech are highly suspect under the First Amendment and need to be reviewed with
"special care" when the government tries to impact consumer behavior by suppressing information. n84 In 1993, the
Edenfield Court echoed this point, concluding that "prophylactic" bans on protected commercial speech violate First
Amendment policy aimed at facilitating broad public access to "complete and accurate commercial information." n85
In Central Hudson, the Court did not decide the level of rigor with which the fourth factor should be applied. In
1989, in Board of Trustees v. Fox, the Court held that narrow tailoring under the fourth factor does not mean that the
government must employ the least speech restrictive regulatory means available. n86 For the Court, Justice Scalia
pointed out that Central Hudson requires only a reasonable, and not a perfect, fit between the asserted regulatory goals
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and the legislation. n87 "Within those bounds," he wrote, "we leave it to governmental decisionmakers to judge what
manner of regulation may be best employed." n88
Arguably, the Fox Court weakened the fourth Central Hudson factor, as commentators have pointed out. n89 The
Court could have required that government utilize the least speech-restrictive regulatory means but clearly rejected that
more stringent approach. In more recent commercial speech cases, however, the Court has significantly tightened the
fourth factor. In those cases, the Court has required the government to demonstrate that a regulation of protected
[*281] commercial speech was necessary because direct regulation of conduct itself was either unavailable or would
be ineffective. As pointed out by Justice Clarence Thomas in his concurrence in 44 Liquormart, this rendered it more
difficult--if not highly unlikely--for government to demonstrate narrow tailoring under the fourth factor. n90
For instance, in Coors Brewing, the Court concluded that the federal ban on alcohol content percentages in beer labeling was not narrowly tailored because the government had more direct means to curb "strength war" marketing than
restricting speech. n91 The Court suggested that the government could impose direct limits on beer alcohol content. n92
Similarly, in 44 Liquormart, a plurality of the Court held that the state ban on retail liquor price advertising was not
sufficiently narrow because Rhode Island had more direct means available to curb liquor consumption than banning
advertising. n93 In the principal opinion in 44 Liquormart, Justice Stevens concluded that it is "perfectly obvious" that
Rhode Island could have enacted minimum price levels or imposed taxes on liquor sales to keep prices artificially high.
n94
Likewise, the Greater New Orleans Broadcasting Court concluded that the ban on broadcast casino gambling advertising was too broad because government could directly regulate casinos with betting limits, for instance, to potentially
curb the problems associated with excessive gambling. n95
After the Coors Brewing, 44 Liquormart and Greater New Orleans Broadcasting decisions, it was clear that the
government had to prove narrow tailoring by demonstrating that less speech-restrictive means would not effectively
meet legislative goals. As Justice Thomas wrote in his concurrence in 44 Liquormart: "It would seem that directly banning a product (or rationing it, taxing it, controlling its price, or otherwise restricting its sale in specific ways) would
virtually always be at least as effective in discouraging consumption as merely restricting advertising ... and thus all
restrictions [aimed at dampening demand by legal users] would fail the fourth [factor]." n96 [*282] But, as with the
third factor, it was not entirely clear what level of evidence would suffice for the government to prove narrow tailoring.
These issues would surface again in the Lorillard Tobacco case that was on the horizon.
"Vice" Advertising Under the First Amendment
Another important issue leading up to the Lorillard Tobacco opinion was whether the government had added constitutional leeway to regulate harmful product advertising. In a 1986 case dealing with casino gambling advertising n97
and a 1993 case dealing with state lottery advertising, n98 the Supreme Court strongly suggested that the government's
power to ban so-called vice products or activities included the lesser power to ban advertising about these products or
activities. However, the Court largely abandoned that approach in Coors Brewing in 1995, n99 44 Liquormart in 1996
n100
and Greater New Orleans Broadcasting in 1999. n101
In Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, decided in 1986, the Court upheld Puerto
Rico's ban on casino gambling advertising targeted to the local Puerto Rican population. n102 Puerto Rico argued that
the ban served to protect the population from the social ills of compulsive gambling, which the Court accepted as a sufficiently substantial regulatory interest. n103 In an opinion by Justice Rehnquist, the Court assumed without evidence
that the ban would directly advance Puerto Rico's asserted regulatory goal of reducing social harms related to compulsive gambling. n104 In United States v. Edge Broadcasting Co., decided in 1993, the Court upheld a federal broadcast
ban on state lottery advertising carried [*283] by broadcast licensees located in non-lottery states and, in doing so,
relied heavily on its Posadas rationale. n105
In both Posadas and Edge Broadcasting, the principal opinions suggested that because gambling was not a constitutionally-protected right and could be banned by government as a "vice" activity, advertising regulations should be
viewed with greater deference to legislative goals than for other "non-vice" activities or products. For instance, in Posadas, Justice Rehnquist wrote for the Court: "It would be a strange constitutional doctrine indeed which would concede
to the legislature the authority to totally ban a product or activity, but deny ... authority to forbid the stimulation or demand for the product or activity through advertising." n106 This clearly echoed his dissent in Central Hudson, in which
he suggested that the Court should have given greater constitutional deference to New York in regulating advertising by
public utilities. n107 In Posadas, the Court split 5-4, and the dissenters were sharply critical of the majority's approach.
For instance, Justice Stevens concluded that the advertising ban was blatantly discriminatory and flatly unconstitutional.
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Likewise, in his dissent in Edge Broadcasting, Justice Stevens called the federal broadcast ban "extremely paternalistic" and "patently unconstitutional." n109
n108
Retreating from Posadas and, arguably, Edge Broadcasting, the Coors Brewing Court rejected the idea that the
Central Hudson analysis is more lenient for government regulation of vice product advertising. n110 Likewise, in 44
Liquormart, a majority of the Court clearly rejected the so-called "greater-includes-the-lesser" rationale that had been
utilized in Posadas, with Justice Stevens concluding for the Court that legislatures should not have the "broad discretion
to suppress truthful, nonmisleading information for paternalistic purposes that the Posadas majority was willing to tolerate." n111 In a concurring [*284] opinion joined by Justices Rehnquist, David H. Souter and Stephen Breyer, Justice
O'Connor agreed with Justice Stevens that the deferential approach of the Posadas Court was invalid. n112 Continuing
that trend, the Greater New Orleans Broadcasting Court confirmed its rejection of the Posadas rationale. Writing for
the majority in that case in 1999, Justice Stevens echoed his position from 44 Liquormart and concluded that the "power
to prohibit or to regulate particular conduct does not necessarily include the power to prohibit or regulate speech about
that conduct." n113
In Posadas and Edge Broadcasting, the Court arguably utilized its most deferential versions of the Central Hudson
analysis to date. Indeed, one commentator called the Posadas decision the "quintessential example of Central Hudson
gone awry." n114 Other commentators concluded that after Greater New Orleans Broadcasting, the vice distinction retained little if any First Amendment significance in the context of lawful adult purchases and consumption. n115 However, the Court still had not addressed the evidentiary issue in the context of tobacco advertising restrictions, nor had the
Court utilized the Central Hudson analysis in a case involving regulations aimed at shielding children from harmful
product advertising or preventing unlawful activities like tobacco product purchases and usage by minors. Thus, the
question remained how the Court would utilize the Central Hudson analysis in such a case--if at all.
TOBACCO ADVERTISING: NATIONAL REGULATORY FRAMEWORK
Tobacco advertising has been one of the most controversial public issues of recent years. Recent data indicate that
tobacco manufacturers have continued to promote their products heavily. For instance, according to the most recent
Federal Trade Commission figures, cigarette manufacturers spent $ 9.57 billion in the United States in 2000 [*285]
on advertising and promotion, which was an increase of 16.2% increase over 1999 expenditures and a 139% increase
over those in 1990. n116 Until deciding the Lorillard Tobacco case, the Supreme Court had not ruled directly on the
constitutionality of government curbs on tobacco advertising. In striking down state tobacco advertising restrictions in
that case, the Court relied in part on the presence of a national regulatory framework, including federal laws requiring
health warnings for tobacco product advertising and labeling and banning tobacco advertising from electronic media
regulated by the Federal Communications Commission. n117
Federally-Mandated Warnings in Tobacco Labeling and Advertising
The Federal Cigarette Labeling and Advertising Act (FCLAA) n118 requires that cigarettes sold or distributed in the
United States include health warnings on packaging n119 and in print advertising. n120 [*286] Generally, Congress
intended for these warnings to inform the public about "any adverse health effects" of smoking cigarettes. n121 Under
the FCLAA, cigarette manufacturers and importers must adhere to a compliance plan approved by the Federal Trade
Commission. n122
Under the FCLAA, warnings in cigarette packaging and advertising must be conspicuous, as defined by the act n123
and described more fully in official FTC compliance guidelines. n124 In addition, cigarette manufacturers and importers
must use all of the required warnings on a rotating basis, n125 also more fully detailed in the official compliance guidelines. n126 The 1986 Comprehensive Smokeless Tobacco Health Education Act (Smokeless Tobacco Act), n127 includes
similar package and advertising labeling requirements for smokeless tobacco products, n128 except that outdoor advertising for smokeless tobacco products is exempt from the warning requirements. n129
The FCLAA also contains federal pre-emption provisions that prohibit states from enacting warning requirements
for packaging n130 or "advertising or promotion" of cigarette products covered by the FCLAA. n131 As a matter of public policy, Congress intended for these pre-emption provisions to protect "commerce and the national economy" from
being "impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations." n132 Similarly,
the Smokeless Tobacco Act pre-empts states from enacting their own [*287] package or labeling requirements for
smokeless tobacco except in outdoor advertising. n133
Tobacco Advertising Ban in Federally Regulated Electronic Media
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The FCLAA also bans advertising for cigarettes and little cigars on electronic media licensed and regulated by the
FCC, n134 and the Smokeless Tobacco Act includes a similar ban for smokeless tobacco products. n135 To date, there is
no legislation that places the Internet under the broad regulatory jurisdiction of the FCC, and the Supreme Court has
strongly suggested that the Internet cannot be constitutionally regulated in the same manner as broadcast and other
FCC-licensed electronic media. n136
In 1971, a federal appeals court rejected a First Amendment challenge to the original cigarette advertising ban for
regulated electronic media. n137 In 1972, the Supreme Court affirmed the lower federal court ruling without issuing an
opinion and, thus, allowed the broadcast ban to stand. n138 This occurred some four years before the Court decided Virginia Board in 1976 and assimilated advertising into the First Amendment, and some eight years before the Court created the Central Hudson analysis in 1980. How the Supreme Court might decide the constitutional fate of the tobacco
advertising ban on regulated electronic media is an issue that merits additional legal and policy research. One commentator recently concluded that [*288] the ban probably is unconstitutional under the Central Hudson analysis, but
suggested that courts would be reluctant to overturn such a well-established regulation. n139
FDA Regulations (1996) and Master Settlement Agreement (1998)
In 1996, the Food and Drug Administration issued regulations that would have substantially limited the sale, distribution and advertising of tobacco products in the United States (Final Rule). n140 Ultimately, the Supreme Court held
that the FDA did not have the legal authority to regulate tobacco, n141 and the regulations in the Final Rule never went
into effect. However, in a 1998 agreement with forty-six states, the nation's largest tobacco companies agreed to adhere
to a set of sales, distribution and advertising restrictions similar to many of the regulations in the Final Rule. n142
In enacting the Final Rule in 1996, the FDA concluded that advertising regulations were necessary to curb the appeal of cigarettes and smokeless tobacco products to minors and to curb demand and illegal underage consumption of
tobacco products. n143 For instance, regulations proposed in the Final Rule would have limited tobacco advertising in
print media to black text on a white background n144 with an exception for tobacco advertising in an "adult publication,"
defined [*289] as a publication whose underage readership (readers younger than 18 years old) is less than 15% of
the publication's total readership and does not otherwise exceed two million underage readers. n145 In addition, the regulations would have banned outdoor advertising for cigarette and smokeless tobacco within 1,000 feet of schools and
public playgrounds, and limited all other such advertising to black text on a white background. n146 Other regulations in
the Final Rule would have limited cigarette and smokeless tobacco advertising in retail establishments (point-of-sale
advertising) to black text on a white background except when located in "adult establishments" that ban minors, and the
ads are placed so as to be not visible from outside the establishment. n147
In supporting documentation, the FDA concluded that its tobacco advertising restrictions would pass muster under
the Central Hudson analysis. n148 Specifically, under the third Central Hudson factor, the FDA asserted that it had collected enough evidence to establish that the advertising regulations would directly and materially advance its goal of
reducing underage tobacco use. n149 In particular, the FDA concluded that its review of relevant social science research
allowed the conclusion that "expert opinion, surveys and studies provide sufficient support for the inference that advertising does play a material role in children's tobacco use." n150 In addition, the FDA concluded that the proposed advertising regulations were sufficiently narrow under the fourth Central Hudson factor, claiming that the regulations still
allowed tobacco manufacturers and retailers to communicate [*290] with adult purchasers while curbing advertising
likely to be viewed by minors. n151
The FDA admitted in the record that it could cite no single study that established a direct causal connection between advertising and the decision by minors to begin using tobacco. However, based on documentation the FDA reviewed, it concluded that advertising was instrumental in leading minors to use tobacco products. n152 For instance, the
FDA concluded that "young people are aware of, respond favorably to, and are influenced by cigarette advertising," n153
relying [*291] heavily on a social psychological theory suggesting that children can be particularly susceptible to
"peripheral" cues in advertising such as colorful graphics and imagery. n154 The FDA's supporting documentation is
indeed remarkable for its extensive review of the social science literature on advertising and tobacco usage. This is important because the Supreme Court ultimately relied on the FDA record when considering whether there is a sufficient
connection between advertising and underage tobacco use under the third Central Hudson factor in Lorillard Tobacco.
n155
The FDA regulations were challenged, and the Supreme Court ultimately struck down the entire regulatory scheme
in Food and Drug Administration v. Brown & Williamson Tobacco Corp. n156 There, the Court held that the FDA did
not have authority from Congress to regulate tobacco products under the Food, Drug and Cosmetic Act. n157 In deciding
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the case, the Court found it unnecessary to reach First Amendment claims that the FDA regulations were unconstitutional. Following the decision in Brown & Williamson, the FDA withdrew all of its proposed tobacco regulations
adopted in the Final Rule. n158 In [*292] addition, after the Brown & Williamson decision was handed down, three
bills were introduced and remain pending in Congress to amend the Food, Drug and Cosmetic Act and give the FDA
legislative authority to regulate tobacco products. n159
In 1998, while the federal court challenge to the Final Rule was pending, forty-six states entered into a settlement
agreement (Master Settlement Agreement) with the largest U.S. tobacco companies. n160 To settle claims by the states
seeking various costs connected with the treatment of smoking-related illnesses, the tobacco manufacturers agreed to
pay more than $ 200 billion and adhere to marketing and advertising restrictions similar to those contained in the invalidated the FDA regulations. For instance, the Master Settlement Agreement restricts tobacco brand name sponsorships
for such events as concerts and athletic contests n161 and seeks to eliminate most outdoor and transit tobacco advertising. n162 The agreement has exceptions, however, such as provisions that allow outdoor tobacco advertising when it is
located on the property of retail establishments that sell tobacco products. n163
[*293] Although the Supreme Court avoided the First Amendment issues in Brown & Williamson, it took the
opportunity to address some of them when it decided Lorillard Tobacco in 2001. In that case, the Supreme Court addressed the constitutionality of state tobacco advertising restrictions patterned in part after the failed FDA regulations.
The Court utilized the Central Hudson analysis for the first time in a tobacco advertising case and, also for the first
time, dealt with a regulatory scheme in which advertising for adults was being restricted on grounds of protecting minors from a harmful product.
LORILLARD TOBACCO CO. V. REILLY
In Lorillard Tobacco, n164 the Supreme Court struck down state regulations limiting outdoor and retail point-of-sale
tobacco advertising. The regulations prohibited as an "unfair act or practice" any "outdoor advertising" for cigarettes,
smokeless tobacco and cigars located within a 1,000-foot radius of a school or playground. n165 "Outdoor advertising"
included in-stadium and in-store signs visible from outside these facilities. The regulations also required point-of-sale
advertising to be placed five-feet or higher in retail operations that allowed children and were covered by the 1,000-foot
rule. n166 These regulations acted to close loopholes in the Master Settlement Agreement that allowed outdoor and
point-of-sale tobacco advertising on the property of tobacco retailers. n167
A coalition of tobacco manufacturers and retailers that included the top four U.S. cigarette manufacturers--Philip
Morris Cos., Inc.; R.J. Reynolds Tobacco Holdings, Inc.; Brown & Williamson Tobacco Co.; and Lorillard Tobacco
Co.--challenged the advertising regulations in federal district court, arguing that the FCLAA's pre-emption provisions
prevented the state from regulating cigarette advertising and, in any event, that all of the advertising regulations were
unconstitutional under the First Amendment. In two separate opinions, the federal district court rejected the pre-emption
argument, n168 and [*294] most of the First Amendment claims, finding only the five-foot height rule unconstitutional under the Central Hudson analysis. n169
On appeal, the United States Court of Appeals for the First Circuit affirmed on the pre-emption issue. n170 The appeals court concluded that the cigarette advertising restrictions governed only the "location" of advertising--similar to a
zoning regulation--and did not interfere with the labeling and advertising scheme set up by Congress in the FCLAA.
n171
In addition, the appeals court upheld all the tobacco regulations, including the five-foot height rule, under the Central
Hudson analysis. n172 The tobacco companies appealed to the Supreme Court, which reversed in an opinion written by
Justice O'Connor. The opinion was viewed as having significant implications for the government's ability to regulate
tobacco advertising and signage outside the terms and provisions of the 1998 Master Settlement Agreement. n173
Pre-Emption Issue
The Court ruled 5-4 that the FCLAA pre-empted Massachusetts from regulating outdoor and retail point-of-sale
cigarette advertising. n174 Writing for the Court, Justice O'Connor concluded that Congress had exclusive legislative
control over cigarette advertising under the FCLAA, and Massachusetts had unlawfully targeted cigarette advertising in
its regulations. She was careful to explain that the pre-emption ruling in the case was narrow and would not prevent
states from enacting general billboard zoning regulations or laws that prohibited conduct such as underage possession of
cigarettes or unlawful sales of cigarettes to minors. n175
On the other hand, Justice Stevens wrote for the dissenters that it was not clear that Congress intended to keep the
states from regulating [*295] the locations of tobacco billboards. Instead, he wrote, Massachusetts and other states
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should have been allowed to utilize zoning ordinances to protect children from cigarette advertising. n176 However, Justice Stevens only mustered three additional votes on this point--Justices Ruth Bader Ginsburg, Breyer and Souter--which was insufficient to create a majority on that part of the decision.
Application of the Central Hudson Analysis
The Court did not reach the First Amendment claim as applied to the cigarette advertising restrictions because the
pre-emption ruling made it unnecessary. However, the pre-emption ruling did not apply to the restrictions on cigar and
smokeless tobacco advertising because Congress had not enacted pre-emption provisions as to those products. n177
Thus, it was necessary for the Court to reach the constitutional issues on cigar and smokeless advertising.
The tobacco companies urged the Court to abandon the Central Hudson analysis in favor of strict constitutional
scrutiny, which would have required that the regulations serve a compelling government interest and employ the least
speech-restrictive means. n178 The Court refused. n179 Writing for the majority, Justice O'Connor concluded that the
Central Hudson analysis was adequate to decide the First Amendment issues in the case without the need to abandon
such a well-established constitutional test. n180 With some reservation, the Court thus reaffirmed the distinct constitutional treatment of commercial speech under the First Amendment and upheld the Central Hudson analysis as the appropriate constitutional test for advertising regulations. n181
Not surprisingly, the Court found no issues under the first two Central Hudson factors. For purposes of summary
judgment, Massachusetts had conceded that the regulations banned protected commercial [*296] speech under the
first factor, and the tobacco companies had conceded that the state had a sufficiently substantial regulatory interest in
reducing tobacco use by minors under the second factor. n182 As with most of the Court's commercial speech decisions,
the Lorillard Tobacco opinion turned on the application of the critical third and fourth factors to the 1,000-foot rule for
outdoor advertising and the five-foot height restrictions for retail point-of-sale advertising for smokeless tobacco and
cigars.
Application of the Third Central Hudson Factor: Direct Advancement
Under the third Central Hudson factor, Justice O'Connor reiterated from Greater New Orleans Broadcasting that
Massachusetts had to demonstrate that its regulations advanced the asserted regulatory interest. n183 She also pointed out
that the Court's prior decision in Edenfeld required the state to come forward with more than "mere speculation or conjecture" and to "'demonstrate that the harms it recites are real and that its restrictions will in fact alleviate them to a material degree.'" n184 The tobacco companies argued that Massachusetts had not met its burden of proof because it failed
to prove a causal link between advertising and underage use of smokeless tobacco and cigars or that minors were even
using these products to a significant degree. n185
The Court held 5-4 that the state had met its burden under the third factor as to the 1,000-foot rule for outdoor advertising. n186 Writing for the Court, Justice O'Connor concluded that Massachusetts had cited a sufficient number of
studies that established a seeming relationship between advertising and underage tobacco use including those reviewed
in the extensive record developed by the FDA in its failed attempt to regulate tobacco advertising in 1996. n187 Justice
O'Connor also noted that in previous cases, the Court had presumed without the necessity of evidence that advertising
stimulates consumer demand and that "suppressed advertising" accomplishes the contrary. n188 [*297] Based on this,
the majority was satisfied that the state had sufficiently established "direct advancement" under the third Central Hudson factor in the case. As Justice O'Connor summarized: "We disagree with [the tobacco parties] that there is no evidence that preventing targeted campaigns and limiting youth exposure to advertising will decrease underage use of
smokeless tobacco and cigars." n189
On the other hand, the Lorillard Tobacco Court ruled 6-3 that the five-foot height rule for point-of-sale smokeless
tobacco and cigar advertising failed the third Central Hudson requirement. Justice O'Connor concluded that the
five-foot height rule was obviously ineffective because many children are taller than five feet and those who are not,
certainly can look up. n190 Justice O'Connor pointed out that Edenfield required more than "ineffective or remote support for the government's purpose" and that Greater New Orleans Broadcasting required more than just a mere chance
that a regulation would be effective. n191 She concluded that the height restrictions failed to pass muster under these
standards and did not directly advance the state's asserted interest in curbing underage use of cigars and smokeless tobacco.
Application of Fourth Central Hudson Factor: Narrow Tailoring
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Turning to the fourth Central Hudson factor, the Lorillard Tobacco Court held that the outdoor and point-of-sale
regulations were too broad to survive constitutional scrutiny. n192 Writing for the Court, Justice O'Connor pointed out
that Massachusetts had not considered the effective impact of the 1,000-foot rule in metropolitan areas like Boston,
where high concentrations of schools and playgrounds would effectively ban tobacco billboards. She also said the regulations were too broad because they banned tobacco billboards of all sizes and types and did not target high visibility
billboards or those with youth-oriented appeals. n193
[*298] She wrote that Massachusetts could not broadly suppress speech directed to adults in order to protect
children. n194 On this point, she relied on Reno v. American Civil Liberties Union, a 1997 decision in which the Court
struck down federal restrictions on non-obscene sexual material on the Internet despite a strong government interest in
preventing access by minors. n195 The Reno Court had concluded that non-obscene sexual material was protected speech
that adults had a First Amendment right to access on the Internet. n196 Similarly, in Lorillard Tobacco, Justice O'Connor
concluded that tobacco manufacturers and retailers had a First Amendment right to communicate with adults about their
products, and that adults had a First Amendment right to receive these communications. She also wrote that the Massachusetts regulations would unfairly quash the only means that some retailers--like small, independent store-owners--had
to communicate with passing customers. n197 The FDA had rejected similar concerns raised by comments submitted
when the agency was considering final passage of the Final Rule in 1996. n198 At that time, the FDA took the position
that clamping the tobacco advertising of some retailers was a necessary and constitutional cost of protecting minors
from exposure to any tobacco advertising within those designated zones. n199 However, the Lorillard Tobacco opinion
suggests that the Court would not agree with the FDA on this point.
Four justices--Breyer, Ginsburg, Souter and Stevens--concluded that the majority ruling on the fourth factor in Lorillard Tobacco was premature, arguing that more evidence and data were needed. n200 Justice Stevens expressed concern that there was no evidence of the regulations' impact including the numbers or percentages of billboards banned in
various areas of the state, qualitative descriptions of areas in which billboards were banned, and descriptions of actual
advertising alternatives for tobacco manufacturers and retailers. n201 [*299] He concluded that the Court should have
remanded the case for further evidentiary development, but still expressed his concern that the outdoor restrictions
would harm the ability of tobacco manufacturers to communicate lawfully with adult customers. n202 Thus, it seems
clear that the Court continues to wrestle with the level of evidentiary sufficiency required under the Central Hudson
analysis.
Justice Thomas and the Rejection of the Central Hudson Analysis
Justice Thomas concurred with the judgment in Lorillard Tobacco. In doing so, however, he strongly opposed the
Court's continued use of the Central Hudson test for regulations aimed at restricting protected commercial speech in
order to suppress information and manipulate consumer choices. Indeed, he concluded that the Court should have
scrapped the Central Hudson analysis in favor of strict constitutional scrutiny under the circumstances of the case. n203
Generally, Justice Thomas agreed with the Court that the cigarette advertising restrictions were pre-empted by the
FCLAA and that the other regulations failed intermediate scrutiny under the Central Hudson analysis. n204 However, he
wrote that the Court should have applied strict constitutional scrutiny to the advertising regulations. n205 He cited two
principal reasons for his position.
First, he argued that it was illogical to treat commercial speech differently from non-commercial speech under the
First Amendment. In fact, he expressly doubted whether such a distinction is ever logical or pragmatic. n206 Secondly,
he concluded that the Massachusetts regulations were a form of content-based discrimination against non-misleading
tobacco advertising. On this point, he wrote: "I continue to believe that when the government seeks to restrict truthful
speech in order to suppress the ideas it conveys, strict scrutiny is appropriate whether or not the speech in question may
be characterized [*300] as 'commercial.'" n207 He argued that the government could only constitutionally regulate
advertising to prevent "commercial harms" such as consumer-related risks associated with deceptive or misleading advertising. n208
Justice Thomas applied strict scrutiny and concluded, first, that the state had a sufficiently compelling interest in
reducing underage use of tobacco. n209 However, he questioned whether the regulations possibly could be an effective
means of advancing that interest. n210 Regardless, he wrote, the regulations were far too broad and, thus, unconstitutional for that reason alone. n211 He wrote that the state should have tried more direct means of curbing underage tobacco
use like better enforcement of laws against selling tobacco to minors and enactment of laws against underage possession
and use of tobacco products. n212
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Justice Thomas suggested that Massachusetts was improperly seeking a vice exception to the First Amendment that
would more liberally allow states to regulate advertising for legal but potentially harmful products such as tobacco and
alcohol. n213 However, he concluded that such an exception did not exist in the Court's commercial speech jurisprudence and could not be used as a means of salvaging otherwise unconstitutional restrictions on protected advertising.
n214
In addition, he pointed out that government policies to ban advertising to protect children's health, if allowed, could
just as logically be applied to lawful products like high-calorie and high-fat foods and alcoholic beverages. n215
Of those justices who wrote opinions in Lorillard Tobacco, Justice Thomas wrote most strongly about the important historical role of the First Amendment as the protector of objectionable and even harmful expression. And, in a
particularly remarkable passage, he applied that notion to tobacco advertising. He wrote:
[*301] No legislature has ever sought to restrict speech about an activity it regarded as harmless and
inoffensive. Calls for limits on expression always are made when the specter of some threatened harm is
looming. The identity of the harm may vary. People will be inspired by totalitarian dogmas and subvert
the Republic. They will be inflamed by racial demagoguery and embrace hatred and bigotry. Or they will
be enticed by cigarette advertisements and choose to smoke, risking disease. It is therefore no answer for
the State to say that the makers of cigarettes are doing harm: perhaps they are. But in that respect they are
no different from the purveyors of other harmful products, or the advocates of harmful ideas. When the
State seeks to silence them, they are all entitled to the protection of the First Amendment. n216
Although this was the strongest statement to date on his commercial speech position, Justice Thomas had taken
similar positions in previous cases. n217 For instance, in his concurring opinion in 44 Liquormart, he asserted that it is
"per se illegitimate" for government to manipulate lawful consumer choices by suppressing protected commercial
speech. n218 He made similar statements in a concurring opinion in Greater New Orleans Broadcasting, taking the position in that case that the Court should have applied strict constitutional scrutiny to federal restrictions on casino gambling advertising. n219 While Justice Thomas seems to be the lone justice at this time calling explicitly for the abandonment of the Central Hudson analysis, Justices Blackmun, joined by Justice Brennan, made a similar argument in his
concurring opinion in the Central Hudson opinion itself. n220
[*302] Impact of Lorillard Tobacco in the Lower Courts
Not long after the Supreme Court handed down its decision in Lorillard Tobacco, lower courts began to apply its
principles in constitutional challenges to various outdoor advertising restrictions. So far, the critical factor in the decisions has been whether the challenged regulations target specific content, like tobacco or alcohol advertising, or could
be considered content-neutral zoning ordinances. Courts have typically upheld general zoning regulations but struck
down specific regulations of alcohol or tobacco advertising on either federal pre-emption or First Amendment grounds,
much like the majority approach in Lorillard Tobacco.
In two cases, a federal appeals court and a district court upheld general outdoor advertising ordinances in court
challenges filed on First Amendment grounds. In Long Island Board of Realtors, Inc. v. Village of Massapequa Park,
decided in 2002, the Second Circuit Court of Appeals upheld a town ordinance that prohibited almost all commercial
signage on residential properties. n221 Similarly, in Infinity Outdoor, Inc. v. City of New York, decided in 2001, a New
York federal district court upheld a city ordinance that prohibited all off-site commercial billboards within 200 feet of
all highways and parks. n222 In both cases, the courts acknowledged the Lorillard Tobacco decision and found that the
ordinances in question directly advanced sufficiently substantial interests in traffic safety or aesthetics in a reasonable
manner without unconstitutionally targeting specific commercial content. n223
Within a month of Lorillard Tobacco, the Tenth Circuit Court of Appeals decided Utah Licensed Beverage Association v. Leavitt, n224 and struck down state regulations that banned most liquor advertising in Utah. n225 Under the first
Central Hudson factor, the court concluded [*303] that the regulations banned truthful, non-misleading commercial
speech and had to be tested under the three remaining factors. n226 Under the second factor, the court found that the state
had a sufficiently substantial regulatory interest in reducing social ills related to alcohol use like drunk driving and underage alcohol consumption. n227
But the Tenth Circuit ruled that Utah's regulations were irrational and thus unconstitutional under the third Central
Hudson factor because they banned advertising for one form of alcoholic beverages (liquor) and not others (beer and
wine). The court relied on Lorillard Tobacco, Greater New Orleans Broadcasting and 44 Liquormart in finding that
Utah had not carefully weighed the impact of a near-total ban on speech and had not demonstrated that "nonspeech regulations" would be ineffective in meeting the state's goals. n228
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Similarly, in Jones v. Vilsack, also decided in 2001, the Eighth Circuit Court of Appeals relied on Lorillard Tobacco to invalidate key provisions of the Iowa Tobacco Use Prevention and Control Act (Control Act) under the preemption provisions of the FCLAA. n229 The Control Act prohibited retailers and wholesalers from giving away tobacco
products and providing any "free articles, products, commodities, gifts, or concessions" in connection with any tobacco
purchases. n230 The appeals court held that the FCLAA prevented states from regulating cigarette advertising or promotion, and the Control Act sought to regulate activities within the plain meaning of the term "promotion" in the FCLAA.
n231
The court relied on Lorillard Tobacco, noting that in that case, the Court required that the terms "advertising or
promotion" in the FCLAA must be given their "plain and ordinary" meanings. n232 Because the pre-emption ruling only
applied to cigarette advertising, the appeals court sent the case back to the trial court to determine if the regulations violate the First Amendment as to other tobacco products. n233
In Eller Media Company v. City of Cleveland, an Ohio federal district court struck down a city ordinance that prohibited outdoor alcohol advertising in Cleveland. n234 The ordinance criminalized alcoholic [*304] beverage advertising in "publicly visible locations" except for signage in industrial areas, temporary signage and billboards only visible
from certain interstates. n235 The court concluded that the ordinance would effectively ban most outdoor alcohol advertising in the city's densely populated areas. n236
Applying the Central Hudson analysis, the Eller Media court found that the ordinance banned protected commercial speech under the first factor and the city had a sufficiently substantial regulatory interest in curbing illegal underage
drinking under the second factor. n237 Thus, as in Lorillard Tobacco, the Eller Media decision turned on application of
the third and fourth Central Hudson factors. n238
Under the third factor, the court used Justice O'Connor's liberal approach from Lorillard Tobacco and concluded
that Cleveland had cited enough studies to find a sufficient connection between advertising and underage alcohol consumption for purposes of the Central Hudson analysis. n239 However, under the fourth factor, the court found the ordinance overly broad because it operated geographically as an effective ban much like the Massachusetts regulations
struck down in Lorillard Tobacco. n240 In addition, the court found the ordinance overly broad because it banned all
alcohol advertising and not just advertising most likely to be particularly appealing to children. n241 Echoing the Lorillard Tobacco majority, the Eller Media court held that Cleveland had unconstitutionally infringed upon the right of
manufacturers and retailers to advertise lawful alcoholic products to adults and the right of adults to receive these communications. n242
In yet another case, the Lorillard Tobacco decision prompted Chicago to voluntarily repeal a local ordinance that
generally prohibited outdoor advertising for alcoholic beverages and cigarettes. n243 The [*305] Federation of Advertising Industry Representatives (FAIR), an advertising industry trade organization, had challenged the ordinance on
First Amendment grounds. A federal trial judge had ruled in 1998 that the provisions as applied to cigarette advertising
were pre-empted by the FCLAA and invalidated the entire ordinance on that ground alone. n244 The Seventh Circuit
Court of Appeals reversed the federal district court on the pre-emption issue, n245 and the Supreme Court refused to
review the decision. n246 After the Supreme Court handed down its decision in Lorillard Tobacco, Chicago dropped the
matter without receiving a ruling from the federal trial court on the pre-emption or constitutional issues raised by FAIR.
ANALYSIS AND DISCUSSION
As indicated, the Lorillard Tobacco decision had a fairly immediate impact in the lower courts and prompted responses from federal legislators seeking to grant the FDA regulatory authority over tobacco. The case is also significant
from a constitutional perspective because it marks the first time the Supreme Court applied the Central Hudson test in a
tobacco advertising case. In addition, the decision effectively places tobacco advertising on the same constitutional level
as advertising for other lawful goods and services under the First Amendment and creates a strong likelihood that laws
restricting the flow of protected commercial speech in order to manipulate consumer behavior are likely to be struck
down as unconstitutional despite a compelling regulatory interest such as protecting the health of minors. More importantly, the Lorillard Tobacco decision has added insights to the Court's handling of advertising regulations under the
critical third and fourth Central Hudson factors, the regulation of harmful product advertising and the continued validity
of the Central Hudson analysis itself.
[*306] Third Central Hudson Factor
Under the third Central Hudson factor, which requires the government to demonstrate that its regulation directly
advances a substantial regulatory goal in a direct and material way, it is increasingly clear that the government needs to
submit a sufficient evidentiary record in support of its case. The Supreme Court considered the extent of the evidentiary
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record under this factor in Coors Brewing, 44 Liquormart and Greater New Orleans Broadcasting, and did so again in
Lorillard Tobacco. The Court abandoned in those cases the more deferential approach taken in Posadas and Edge
Broadcasting, in which the Court had accepted the government's claims of direct advancement with little or no evidence. Even so, the Court's approach in all of these cases is mitigated by the rather loose evidentiary standard it has
taken when determining the sufficiency of government evidence supporting claims of direct advancement under the
third factor.
As indicated, the Lorillard Tobacco Court narrowly adopted Justice O'Connor's approach from Went For It when
considering the evidentiary record. In other words, the Court seems willing to accept government summaries of empirical studies and anecdotal evidence as proof of direct advancement without the need to establish methodological soundness as the dissenters in those cases would have demanded. Such an approach arguably weakens the third Central Hudson factor by easing the government's burden of proof under the third Central Hudson factor. n247 As a result, the
amount and sufficiency of evidence of direct advancement remains somewhat unclear and arguably subject to the discretion and whims of courts reviewing commercial speech cases. n248
[*307] However, it seems equally clear that the Court will not tolerate "irrational" regulatory schemes under the
third Central Hudson factor. The Court struck down irrational regulatory schemes in both Coors Brewing and Greater
New Orleans Broadcasting. In addition, the Court in Lorillard Tobacco concluded that the Massachusetts height restrictions also were irrational and thus fatally flawed on that point alone. Arguably, when restricting protected commercial speech, legislatures must not only craft a sufficient legislative record but also must ensure that regulations are not
undermined or controverted by other regulatory provisions. In other words, the Court seems unwilling to liberally defer
to legislative judgment when protected commercial speech is at issue.
Fourth Central Hudson Factor
When considering the fourth Central Hudson factor, the Lorillard Tobacco Court focused primarily on the broad
sweep of the Massachusetts regulations and treated them as an effective ban on all outdoor tobacco advertising in the
state's major metropolitan areas. Clearly the Court seems unwilling to tolerate such broad suppression of protected
commercial speech when narrower, more precise regulations have not been considered. But it remains to be seen how
the Court might handle more exacting regulations under the fourth Central Hudson factor.
In the majority opinion, Justice O'Connor suggested that regulations more specifically aimed at restricting
youth-oriented tobacco appeals in highly-visible outdoor advertising might be sufficiently narrow under the fourth Central Hudson factor. n249 Justice Thomas [*308] made a similar point in the majority opinion in Coors Brewing in
1995. He suggested that a regulation prohibiting specific advertising appeals based on high alcohol content might be a
sufficiently narrow alternative under the fourth factor to banning all alcohol percentage information on beer labels. n250
Thus, the issue of how the Court will deal with narrower, more specific advertising regulations than those considered in
cases like Coors Brewing and Lorillard Tobacco remains uncertain.
Also under the fourth factor, the Lorillard Tobacco Court continued its trend of requiring the government to seek
out more direct means of accomplishing regulatory goals than restricting protected commercial speech. In other words,
a regulation of protected commercial speech is unlikely to be considered narrowly tailored if there are direct regulatory
means available that government has not tried or has tried and found ineffective. As indicated previously, this was the
approach of the Court in striking down the regulations at issue in Coors Brewing, n251 44 Liquormart n252 and Greater
New Orleans Broadcasting. n253 The Court took a similar approach in 2002 in its most recent commercial speech case,
Thompson v. Western States Medical Center. n254 In that case, the Court struck down a federal ban on direct-to-consumer advertising by pharmacies, pharmacists and physicians for legal compounded prescription drugs. n255
The Court concluded that the government could more directly regulate the manufacture and sale of compounded prescription drugs and better alleviate regulatory concerns about the sale of compounded prescription drugs for purposes
not approved by the FDA. n256
It also is important to note that the Lorillard Tobacco Court was divided on the sufficiency of the evidence needed
to decide whether the Massachusetts regulations were narrowly tailored under that factor. Justices Breyer, Ginsburg,
Souter and Stevens concluded that more substantial evidence of the impact of the regulations was needed before deciding that issue. n257 Thus, the current Court remains divided over the sufficiency of evidence needed to decide both direct
advancement under the third factor and narrow tailoring under the fourth factor. Unless the Supreme Court abandons the
Central [*309] Hudson analysis, these evidentiary issues are likely to resurface as litigants in commercial speech
cases develop more sophisticated evidentiary records in support of their claims under both the third and fourth factors.
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8 Comm. L. & Pol'y 267, *
Continued Rejection of the "Vice" Advertising Exception
The Lorillard Tobacco opinion is also significant for again clearly rejecting the "greater-includes-the-lesser" rationale from the Posadas and Edge Broadcasting cases. Without question, the power of the government to ban a vice
product or activity is not alone sufficient to justify otherwise unconstitutional regulations of advertising. As commentators have pointed out, in Coors Brewing, 44 Liquormart and Greater New Orleans Broadcasting, the Court seemed to
have virtually eliminated the "vice" category from its commercial speech jurisprudence to the extent that it ever was
firmly implanted. n258 Still, after Greater New Orleans Broadcasting, there was some question about whether the Court
would take a different approach with tobacco advertising because of the substantial health risks associated with underage tobacco use. However, the Lorillard Tobacco Court made it clear that even a compelling interest in protecting children's health would not allow government to overly burden the flow of lawful communication to adults about tobacco
products. The current Court seems willing to apply the Central Hudson analysis--when applicable--with equal rigor to
all advertising for lawful products, including so-called "vice" products and activities like alcohol, gambling and, now,
tobacco.
For instance, commentators in the Journal of the American Medical Association recently concluded the following
about the impact of the Lorillard Tobacco decision: "The Supreme Court, in effect, has left public health authorities
with little room to craft tobacco advertising restrictions that are both demonstrably effective and likely to be deemed
constitutionally acceptable by the current Supreme Court." n259 These commentators proposed a three-pronged regulatory scheme consisting of a federal tax on tobacco advertising and promotion, n260 public health warnings in print advertisements equal in size [*310] to half of the advertising space, n261 and required graphic depictions of the results
of smoking damage on cigarette packages like those required in Canada. n262 One can surmise that regulatory proposals
that seek other methods than banning protected commercial speech are precisely the results the Supreme Court intended
through its recent line of commercial speech decisions.
The result of a constitutional challenge to such proposed regulations remains uncertain and worthy of further exploration should such proposals be strongly considered by lawmakers. In addition, as indicated, proposed federal legislation would provide Congressional authority to the FDA to regulate tobacco. n263 Provisions in this proposed legislation also seek to remove the federal pre-emption provisions of the FCLAA and enact the FDA's 1996 tobacco advertising and promotion regulations as federal law. n264 Thus, evidence clearly indicates that federal lawmakers have not
abandoned their efforts to curb tobacco advertising on a national scale. Should this proposed legislation be signed into
law, constitutional challenges in court would be certain to follow. Thus, a fresh look at the FDA's 1996 Final Rule
through the lens of the Supreme Court's current commercial speech doctrine seems worthy of additional research and
analysis.
Continued Validity of the Central Hudson Analysis
Finally, it is important to note that the current Court remains ambiguous about the Central Hudson analysis in situations where the government enacts regulations restricting protected commercial speech in order to manipulate lawful
consumer choices by suppressing the flow of commercial information in the marketplace. As previously indicated, in
Lorillard Tobacco, Justice O'Connor expressed her ambivalence over the continued validity of the Central Hudson
analysis under these circumstances, as did Justice Stevens in his concurrence. [*311] Justice Thomas continues to be
the lone justice who clearly favors abandoning the Central Hudson analysis in favor of strict scrutiny, the position he
took in 44 Liquormart, Greater New Orleans Broadcasting and Lorillard Tobacco. Regardless of whether the Court
abandons the Central Hudson analysis, its recent trend of strengthened constitutional protection for truthful,
non-misleading advertising about lawful products and services seems unlikely to be interrupted.
CONCLUSION
The Supreme Court remains divided on how to apply the Central Hudson analysis in commercial speech cases, especially when it comes to the sufficiency of evidence needed to establish "direct advancement" under the third factor
and "narrow tailoring" under the fourth factor. Despite this, however, the Lorillard Tobacco Court clearly continued a
trend of providing strong First Amendment protection for non-misleading advertising including tobacco advertising. In
addition, the Court made it clear that the First Amendment will not allow the government to substantially disrupt the
flow of lawful commercial information to adult consumers even when a compelling regulatory goal of protecting children from the harms of tobacco usage exists. The pragmatic effect for advertisers and marketers is that government has
little constitutional leeway to broadly restrict non-misleading commercial communication about lawful products and
services. n265 In short, the Court continues to suggest that legislators look seriously and carefully at more direct, narrow
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8 Comm. L. & Pol'y 267, *
and efficacious means of solving serious social and political problems like underage use of tobacco products than banning protected commercial speech.
Legal Topics:
For related research and practice materials, see the following legal topics:
Antitrust & Trade LawConsumer ProtectionTobacco ProductsFederal Cigarette Labeling & Advertising ActConstitutional LawBill of RightsFundamental FreedomsFreedom of SpeechCommercial SpeechAdvertisingConstitutional LawBill of RightsFundamental FreedomsFreedom of SpeechCommercial SpeechMisleading Speech
FOOTNOTES:
n1 447 U.S. 557 (1980).
n2 See, e.g., Karl A. Boedecker, Fred W. Morgan & Linda Berns Wright, The Evolution of First Amendment Protection for Commercial
Speech, 59 J. MARKETING 38 (1995); Michael Hoefges & Milagros Rivera-Sanchez, "Vice" Advertising Under the Supreme Court's
Commercial Speech Doctrine: The Shifting Central Hudson Analysis, 22 HASTINGS COMM. & ENT. L. J. 350 (2000); Arlen W.
Langvardt, The Incremental Strengthening of First Amendment Protection for Commercial Speech: Lessons From Greater New Orleans
Broadcasting, 37 AM. BUS. L. J. 587 (2000); Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L. REV. 1 (2000);
Jef I. Richards, Is 44 Liquormart a Turning Point?, 16 J. PUB. POL'Y & MARKETING 156 (1997); and Daniel E. Troy, Advertising Not
"Low Value" Speech, 16 YALE J. REG. 85 (1999).
n3 Post, supra note 2, at 2.
n4 See generally United States v. Edge Broad. Co., 509 U.S. 418 (1993); Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico,
478 U.S. 328 (1986).
n5 See generally Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001); Greater
New Orleans Broad. Ass'n v. United States, 527 U.S. 173 (1999); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996); Rubin v. Coors
Brewing Co., 514 U.S. 476 (1995).
n6 See, e.g., Langvardt, supra note 2, at 650.
n7 Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).
n8 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).
n9 Greater New Orleans Broad. Ass'n v. United States, 527 U.S. 173 (1999).
n10 See generally Hoefges & Rivera-Sanchez, supra note 2 (concluding that the Supreme Court has virtually eliminated the constitutional
distinction between truthful non-misleading advertising for legal "vice" products and services like alcoholic beverages and gambling that are
legal for adults, and advertising for other lawful products and services).
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8 Comm. L. & Pol'y 267, *
n11 See United States v. Edge Broad. Co., 509 U.S. 418 (1993) (upholding federal broadcast ban on state lottery advertising by broadcast
licensees located in non-lottery states); Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986) (upholding
Puerto Rico's ban on casino gambling advertising targeted to the local Puerto Rican population).
n12 533 U.S. 525 (2001). One media account described the opinion as "mix-and-match." Mary Leonard, Limits on Tobacco Ads Lifted,"
BOSTON GLOBE, June 29, 2001, at A1, available at 2001 WL 3940373. Another called it "tangled." Tony Mauro, Mix-and-Match Majority Finds Tobacco-Ad Rules Too Restrictive, FREEDOMFORUM.ORG, June 21, 2001, at
http://www.freedomforum.org/templates/document.asp?documentID=14292.
n13 Mauro, supra note 12.
n14 Id.
n15 15 U.S.C. §§ 1333, et seq. (2002).
n16 See Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973); Breard v. City of Alexandria, 341 U.S. 622
(1951); Valentine v. Chrestensen, 316 U.S. 52 (1942).
n17 425 U.S. 748 (1976).
n18 Id. at 762 (quoting Pittsburgh Press Co., 413 U.S. at 385).
n19 Id. at 765.
n20 Id.
n21 Id. at 770-73. For instance, in a footnote Justice Blackmun wrote, "Even if the differences [between commercial and non-commercial
speech] do not justify the conclusion that commercial speech is valueless, and thus subject to complete suppression by [government], they
nonetheless suggest that a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired." Id. at 771 n.24.
n22 Id. at 771. Justice Blackmun pointed out in Virginia State Board that even commercial speech that "is not provably false, or even
wholly false, but only deceptive or misleading" would fall outside the ambit of First Amendment protection for commercial speech and be
subject to government regulation. He wrote: "We foresee no obstacle to a State's dealing effectively with this problem." Id.
n23 See id. Justice Blackmun wrote, "The First Amendment, as we construe it today does not prohibit the State from insuring that the
stream of commercial information flow cleanly as well as freely." Id. at 771-72.
n24 Justice Blackmun pointed out that even commercial advertising could have important content of interest to the general public. Id. at
764-65. For instance, he noted, in a prior case, the Court had struck down a state ban that prohibited a referral service in Virginia--where
abortions were illegal at the time--from publicizing legal abortion services in New York. Id. at 764 (citing Bigelow v. Virginia, 421 U.S. 809
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8 Comm. L. & Pol'y 267, *
(1975)). However, Justice Blackmun carefully pointed out that, the Virginia State Board Court was not holding that it was not necessary for
advertising to carry such important public information to merit First Amendment protection. Id. at 764-65. For instance, he went on, it would
not be necessary for prescription drug price advertising to include discussion about the "store-to-store disparities in drug prices" to be protected. Id.
n25 447 U.S. 557, 560-61 (1980).
n26 Id. at 566.
n27 Id. The Court noted that New York was not claiming that the "expression at issue is inaccurate or relates to unlawful activity." Id. at
566.
n28 Id. 568-69. In addition, near the end of the opinion, the majority stated, "We accept without reservation the argument that conservation,
as well as the development of alternative energy sources, is an imperative national goal." Id. at 571.
n29 Id. at 569-70.
n30 Id. Justice Powell wrote: "There is an immediate connection between advertising and demand for electricity. Central Hudson would not
contest the advertising ban unless it believed that promotion would increase its sales." Id. at 569. On this point, Justice Blackmun--who had
written the majority opinion in Virginia State Board--disagreed with the Central Hudson majority that a ban on protected commercial speech
was a permissible way for the state to advance its goal of promoting energy conservation. Id. at 573-74 (Blackmun, J., concurring in the
judgment). He concluded that the First Amendment would not tolerate regulations that sought to manipulate consumer demand for lawful
products and services by suppressing information. Id. at 574-75 (Blackmun, J., concurring in the judgment).
n31 See id. at 573 (Blackumn, J., concurring in the judgment). Justice Blackmun concluded that the Central Hudson test was not appropriate "when a State seeks to suppress information about a product in order to manipulate a private economic decision that the State cannot or
has not regulated or outlawed directly." Id. (Blackmun, J., concurring in the judgment).
n32 Id. (Blackmun, J., concurring in the judgment).
n33 Id. at 571.
n34 Id. at 561-62.
n35 Id. (internal citation to Virginia St. Bd. of Pharmacy v. Va. Citizens Council, Inc., 425 U.S. 748, 761-62 (1976) omitted).
n36 Id. at 578 (Blackmun, J., concurring in the judgment).
n37 Id. (Blackmun, J., concurring in the judgment). Justice Stevens, also joined by Justice Brennan, took the position that government
should not be permitted to regulate truthful, non-misleading advertising simply because it fears that the public will find the message persuasive. Id. at 581 (Stevens, J., concurring).
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8 Comm. L. & Pol'y 267, *
n38 Id. at 584-85 (Rehnquist, J., dissenting).
n39 It should be noted that the Court has not always applied the Central Hudson analysis in cases in which commercial speech is involved.
For instance, in Glickman v. Wileman Bros. & Elliott, Inc., the Supreme Court upheld a federal marketing order that required California
growers of certain tree fruit to contribute to a fund that was in part used to subsidize generic advertising for California tree fruit. 521 U.S.
457, 463, 466-67 (1997). The majority concluded that the marketing order did not raise a significant First Amendment issue because it was
part of a larger regulatory scheme that furthered the collective economic interests of tree fruit growers. Id. at 469-70, 475. Thus, the majority
concluded that constitutional scrutiny--even the less stringent Central Hudson test--was inappropriate. Id. at 474-75. Writing for the majority, Justice Stevens concluded that generic advertising was not likely to create a "crisis of conscience" for tree fruit producers who objected to
their payments being used to subsidize the advertising. Id. at 472.
Subsequently, in United States v. United Foods, Inc., the Court struck down on First Amendment grounds a provision in the federal
Mushroom Promotion, Research and Consumer Information Act that assessed fresh mushroom handlers with a fee that was used to subsidize
government-funded generic advertising promoting mushroom sales. 533 U.S. 405, 408-409 (2001). Writing for the Court, Justice Anthony
Kennedy characterized the assessment as a form of compelled speech because it was used to sponsor government expression with a certain
viewpoint and applied the more stringent strict scrutiny instead of the less rigorous Central Hudson analysis. Id. at 410-11. The majority
concluded that the mushroom assessment in United Foods was different than the tree fruit assessment in Wileman Bros. Justice Kennedy
pointed out that the tree fruit assessment was part of larger regulatory scheme aimed at fostering a cooperative market for tree fruit while the
mushroom assessment was not. Id. at 415. In a dissenting opinion, Justice Stephen Breyer concluded that the assessment was a form of economic regulation that did not interfere with the speech rights of mushroom handlers sufficiently enough to raise First Amendment concerns.
Id. at 425-26 (Breyer, J., dissenting) (joined by Justice Ginsburg on this point). Even so, he concluded, the regulations passed constitutional
muster under the Central Hudson analysis. Id. at 429 (Breyer, J., dissenting) (joined by Justices Ginsburg and O'Connor on this point). One
federal district court recently followed the majority approach in United Foods in a case dealing with subsidies for generic beef advertising.
See Livestock Marketing Ass'n v. United States Dept. of Agriculture, 207 F.Supp.2d 992 (D. S.D. 2002).
n40 See City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993); Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981).
n41 See Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).
n42 See Greater New Orleans Broad. Ass'n v. United States, 527 U.S. 173 (1999); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484
(1996); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995); Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328
(1986).
n43 See Greater New Orleans Broad. Ass'n v. United States, 527 U.S. 173 (1999); United States v. Edge Broad. Co., 509 U.S. 418 (1993).
n44 See Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995); Edenfield v. Fane, 507 U.S. 761 (1993).
n45 See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 72 (1983).
n46 See Rubin v. Coors Brewing Co., 514 U.S. 476, 486 (1995).
n47 Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 570 (1980).
n48 507 U.S. 761 (1993).
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8 Comm. L. & Pol'y 267, *
n49 514 U.S. 476 (1995).
n50 517 U.S. 484 (1996).
n51 527 U.S. 173 (1999).
n52 515 U.S. 618 (1995).
n53 507 U.S. at 763.
n54 Id. at 770-71.
n55 Id.
n56 Id. at 771.
n57 514 U.S. 476, 478, 491 (1995).
n58 Id. at 487-88.
n59 Id. at 488-89. The Court described the regulatory scheme as "unique and puzzling" and concluded that the government's asserted regulatory interest in furtherance of the beer labeling ban was undermined by labeling and advertising requirements for wine and liquor. Id. at
489.
n60 Id. at 489-90. The Court concluded that the "Government did not offer any convincing evidence that the labeling ban has inhibited
strength wars." Id. at 490.
n61 Id.
n62 517 U.S. 484, 489-90 (1996).
n63 Id. at 504-05.
n64 Id. at 505-06, 508.
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8 Comm. L. & Pol'y 267, *
n65 Id. at 506 (citing the district court opinion in 44 Liquortmart, Inc. v. Racine, 829 F. Supp. 543, 549 (D. R.I. 1993)). Justice Stevens
concluded that evidence in the record suggested that excessive drinkers and alcoholics were not likely to be deterred by higher prices. Id.
n66 527 U.S. 173, 176, 195-96 (1999).
n67 Id. at 176, 185, 195-96.
n68 Id. at 190.
n69 Id. at 188-89
n70 Id. at 190.
n71 515 U.S. 618 (1995).
n72 Id. at 621-22, 635.
n73 Id. at 624-25.
n74 Id. at 625.
n75 Id. 625-29. The Florida Bar submitted a 106-page summary of a two-year study of advertising that contained both summaries of empirical research in the form of polls and anecdotal accounts of lawyer solicitations of accident victims. For descriptions of the studies recounted in the summary submitted by Florida, see generally, id.
n76 Id. at 627.
n77 Id.
n78 Id. at 628.
n79 Id. at 628-29 (citing Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50-51 (1986); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 584-85
(Souter, J., concurring in the judgment); Burson v. Freeman, 504 U.S. 191, 211 (1992)).
n80 Id.
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8 Comm. L. & Pol'y 267, *
n81 Id. at 640-41 (Kennedy, J., dissenting) (joined by Justices Stevens, Souter and Ginsburg) (calling Florida's summary a "selective synopsis of unvalidated studies"). See also John Phillips, Six Years After Florida Bar v. Went For It, Inc., The Continual Erosion of First
Amendment Rights, 14 GEO. J. LEGAL ETHICS 197, 197 (2000) (stating that the principle study relied upon by Florida was a "rather questionable and extremely narrow survey").
n82 447 U.S. 557, 566 (1980).
n83 Id. at 565.
n84 Id. at 566 n.9.
n85 507 U.S. 761, 765-66 (1993) (citations omitted).
n86 492 U.S. 469, 477-78, 480 (1989).
n87 Id. at 480.
n88 Id.
n89 See, e.g., Langvardt, supra note 2, at 610
n90 517 U.S. 484, 524-25 (1996) (Thomas, J., concurring). On this point, Justice Thomas wrote: "The opinions [in 44 Liquormart] would
appear to commit the courts to striking down restrictions on speech whenever a direct regulation (i.e., a regulation involving no restriction on
speech regarding a lawful activity at all) would be an equally effective method of dampening demand by legal users." Id. at 524.
n91 Rubin v. Coors Brewing Co., 514 U.S. 476, 490-91 (1995).
n92 Id.
n93 517 U.S. at 507-508.
n94 Id. at 507.
n95 527 U.S. 173, 192-93 (1999).
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8 Comm. L. & Pol'y 267, *
n96 517 U.S. at 524-25 (Thomas, J., concurring).
n97 Posadas de Puerto Rico Assocs. v. Tourism Co. Puerto Rico, 478 U.S. 328 (1986).
n98 United States v. Edge Broad. Co., 509 U.S. 418 (1993).
n99 514 U.S. 476 (1995).
n100 517 U.S. 484 (1996).
n101 527 U.S. 173 (1999).
n102 478 U.S. 328, 331, 346 (1986).
n103 Id. at 341.
n104 Id. at 341-42. On this point, Justice Rehnquist wrote:
The Puerto Rico Legislature obviously believed, when it enacted the advertising restrictions at issue here, that advertising
of casino gambling aimed at the residents of Puerto Rico would serve to increase the demand for the product advertised.
We think the legislature's belief is a reasonable one and the fact that appellant has chosen to litigate this case all the way
to this Court indicates that appellant shares the legislature's view.
Id.
n105 509 U.S. 418, 426, 428, 432-35 (1993).
n106 478 U.S. at 346.
n107 447 U.S. at 603-04 (Rehnquist, J., dissenting).
n108 478 U.S. at 359 (Stevens, J., dissenting).
n109 509 U.S. at 437, 439 (Stevens, J., dissenting).
n110 514 U.S. 476, 482 n.2 (1995) (stating that "neither Edge Broadcasting nor Posadas compels us to craft an exception to the Central
Hudson standard [for vice product advertising]").
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8 Comm. L. & Pol'y 267, *
n111 517 U.S. 484, 510 (1996) (joined by Justices Kennedy, Thomas and Ginsburg). Justice Stevens, wrote further:
Moreover, the scope of any "vice" exception to the protection afforded by the First Amendment would be difficult, if not
impossible, to define. Almost any product that poses some threat to public health or public morals might reasonably be
characterized by a state legislature as relating to "vice activity." Such characterization, however, is anomalous when applied to products such as alcoholic beverages, lottery tickets, or playing cards, that may be lawfully purchased on the open
market. The recognition of such an exception would also have the unfortunate consequence of either allowing state legislatures to justify censorship by the simple expedient of placing the "vice" label on selected lawful activities, or requiring
the federal courts to establish a federal common law of vice. For these reasons, a "vice" label that is unaccompanied by a
corresponding prohibition against the commercial behavior at issue fails to provide a principled justification for the regulation of commercial speech about that activity.
Id. at 514.
n112 Id. 531-32 (O'Connor, J., concurring).
n113 527 U.S. 173, 193 (1996) (emphasis added).
n114 Troy, supra note 2, at 132.
n115 See generally Hoefges and Rivera-Sanchez, supra note 2.
n116 FED. TRADE COMM'N, CIGARETTE REP. FOR 2000 1, Table 2A, Table 2B (2002), available at
http://www.ftc.gov/os/2002cigrpt.pdf. The Federal Trade Commission has reported these data to Congress annually since 1967. Id. According to the data reported by the FTC, the cigarette industry spent more than $ 700 million on newspaper, magazine, outdoor, transit,
point-of-sale and Internet advertising. Id. Table 2B. The rest of the expenditures were devoted promotional allowances, sampling distribution, specialty item distribution, public entertainment, direct mail and coupons, among other types of promotional activities. Id.
Although advertising and promotional expenditures have increased every year since 1963, total U.S. cigarette sales in dollars have not.
According to data reported by the FTC, cigarette sales in the United States totaled $ 413.5 billion, which represented a 0.5% increase over
1999 sales ($ 411.3 billion) but a 21% decrease when compared to 1990 sales ($ 523.7 billion). Id. at Table 1. Since 1963, the first year for
which the FTC reported data, 2000 marked the second lowest total of U.S. cigarette sales ahead of 1999. Id.
n117 See generally Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 540-51 (2001).
n118 15 U.S.C. §§ 1333, et seq. (2002).
n119 Id. at § 1333(a)(1). The current set of required packaging warnings are as follows: "SURGEON GENERAL'S WARNING: Smoking
Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy;" "SURGEON GENERAL'S WARNING: Quitting
Smoking Now Greatly Reduces Serious Risks to Your Health;" "SURGEON GENERAL'S WARNING: Smoking By Pregnant Women May
Result in Fetal Injury, Premature Birth, And Low Birth Weight;" and "SURGEON GENERAL'S WARNING: Cigarette Smoke Contains
Carbon Monoxide." Id.
n120 Id. at § 1333(a)(2), (3). The FCLAA distinguishes between printed advertisements in magazines and newspapers and those on outdoor
billboards. See id. at § 1333(a)(2), (3). The current set of required warnings for print advertisements (non-billboard) are the same as those
required for package labels. See supra note 119. The required set of cigarette warnings for outdoor billboard advertising are as follows:
"SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease, And Emphysema;" "SURGEON GENERAL'S
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8 Comm. L. & Pol'y 267, *
WARNING: Quitting Smoking Now Greatly Reduces Serious Health Risks;" "SURGEON GENERAL'S WARNING: Pregnant Women
Who Smoke Risk Fetal Injury and Premature Birth;" and "SURGEON GENERAL'S WARNING: Cigarette Smoke Contains Carbon Monoxide." Id. at § 1333(a)(3).
n121 Id. at § 1331(1).
n122 Id. at § 1333(c).
n123 Id. at § 1333(b).
n124 See generally Fed. Trade Comm'n, Div. of Adver Practices, "Memorandum to Potential Cigarette Manufacturers or Importers," Oct.
1, 2002, available at http://www.ftc.gov/bcp/policystmt/cigarettememo.htm.
n125 15 U.S.C. § 1333(c) (2002).
n126 See generally Fed. Trade Comm'n, supra note 124.
n127 70 U.S.C. § 4401, et seq. (2002).
n128 Id. at § 4402. Smokeless tobacco packaging and advertising must include one of the following warnings: "WARNING: THIS
PRODUCT MAY CAUSE MOUTH CANCER;" "WARNING: THIS PRODUCT MAY CAUSE GUM DISEASE AND TOOTH LOSS;"
"WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES." Id. at § 4402(a)(1). The warnings must be "conspicuous and prominent" as further defined by guidelines that the Federal Trade Commission promulgates. Id. at § 4402(b). Smokeless tobacco manufacturers, packagers and importers must use the warnings on a rotating basis according to a compliance plan that they must submit to the FTC for approval. Id. at § 4402(c), (d).
n129 Id. at § 4402(a)(2).
n130 15 U.S.C. § 1334(a).
n131 Id. at § 1334(b).
n132 Id. at § 1331(2).
n133 70 U.S.C. § 4406 (2002). It should be noted that smokeless tobacco manufacturers do not utilize outdoor advertising as extensively as
other forms of advertising and promotion. According to the most recently available figures from Congress, the five major smokeless tobacco
manufacturers spent a total of $ 170.2 million on advertising and promotion in 1999 but only $ 7,258 on outdoor advertising that year. See
FEDERAL TRADE COMM'N, REP. TO CONGRESS FOR THE YEARS 1998-1999 PURSUANT TO THE COMPREHENSIVE
SMOKELESS TOBACCO HEALTH EDUCATION ACT OF 1986 (2001), available at
http://www.ftc.gov/reports/tobacco/smokeless98_99.htm. According to the FTC, smokeless tobacco advertisers spent $ 30,756,608 (or 18%
of the total of all advertising and promotion dollars) on promotions, $ 26,092,942 (15.3%) on point-of-sale advertising, $ 24,221,899
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8 Comm. L. & Pol'y 267, *
(14.2%) on coupons, $ 22,136,453 (13%) on public entertainment and $ 18,436,630 (10.8%) on magazine advertising. Id. at Table 2E. These
categories accounted for the top five smokeless tobacco advertising and promotional expenditure categories in 1999. Id.
n134 15 U.S.C. § 1335 (2002).
n135 70 U.S.C. § 4402 (2002).
n136 See generally Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
n137 Capitol Broad. Co. v. Mitchell, 333 F. Supp. 582, 585-86 (D.C. Cir. 1971), aff'd without opinion sub nom. Capitol Broad. v.
Kleindienst, 405 U.S. 1000 (1972). The ban was challenged by a coalition of broadcasters.
n138 Capitol Broad. Co. v. Kliendienst, 405 U.S. 1000 (1972).
n139 Martin H. Redish, Tobacco Advertising and the First Amendment, 81 IOWA L. REV. 589, 632-34 (1996). Professor Redish stated
that the electronic media bans on tobacco advertising were "subject to serious constitutional question" and likely would not survive scrutiny
under "modern doctrinal standards of commercial speech protection." Id. at 633-34. However, he concluded that because the bans are so
well-established, the courts would not be likely to overturn them on constitutional grounds. Id.
n140 Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, Final
Rule, 61 Fed. Reg. 44,396 (Aug. 28, 1996) (hereinafter "Final Rule").
n141 Food and Drug Administration v. Williamson Tobacco Corp., 529 U.S. 120, 126, 161 (2000).
n142 See generally Master Settlement Agreement (Nov. 23, 1988), available at http://www.naag.org/upload/1040655230_1stmsa.pdf.
n143 See generally Final Rule, 61 Fed. Reg. 44,396, 44,465-69 (Aug. 28, 1996). In the introduction to the advertising section of the Final
Rule, the FDA wrote: "The purpose of the advertising regulations is to decrease young people's use of tobacco products by ensuring that the
restrictions on access are not undermined by the product appeal that advertising for these products creates for young people." Id. at 44,465
(citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557, 569 (1980)).
n144 21 C.F.R. § 897.32(a) (1996) (revoked 2000). See generally Final Rule, 61 Fed. Reg. at 44,508-14 § VI.E.4 (Aug. 28, 1996).
n145 21 C.F.R. § 897.32(a)(2), (a)(2)(i)-(ii) (1996) (revoked 2000). See generally Final Rule, 61 Fed. Reg. at 44,514-19 § VI.E.5 (Aug. 28,
1996).
n146 21 C.F.R. § 897.30(b) (1996) (revoked 2000). See generally Final Rule, 61 Fed. Reg. 44,396, 44,502-08 § VI.E.3 (Aug. 28, 1996).
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8 Comm. L. & Pol'y 267, *
n147 21 C.F.R. § 897.16(c) (1996) (revoked 2000); § 897.32(a)(1) (revoked 2000). See generally Final Rule, 61 Fed. Reg. at 44,508-14 §
VI.E.4 (Aug. 28, 1996).
n148 Final Rule, 61 Fed. Reg. at 44,471-513 (Aug. 28, 1996). The FDA claimed that it had a sufficiently substantial regulatory interest in
curbing use of cigarettes and smokeless tobacco products by minors to protect their health under the second Central Hudson factor. See generally id. at 44,472-74. In addition, the FDA claimed that its proposed regulations of cigarette and smokeless tobacco advertising and marketing directly advanced this regulatory interest and were narrowly tailored under the fourth Central Hudson factor. See generally id. at
44-474096, 44,496-500.
n149 Id. at 44,474-96.
n150 Id. at 44,474-96 § VI.D. As to the proposed advertising restrictions, the FDA concluded in a subsequent section that the "evidence
amassed during this investigation and provided by comments [to the proposed Final Rule] provides ample support for its requirement that all
forms of advertising that children see and are exposed to can have an effect upon their attitudes about tobacco use." Id. at 44,513.
n151 Id. at 44,472 (asserting that the restrictions would "have virtually no effect on the core informational function of commercial speech"
and were "designed ... to ensure that adults can continue to be informed by the information in tobacco advertising while restricting the noninformative aspects of advertising that appeal to [minors]"), 44,496-500 § VI.E.2.
n152 Id. at 44,466.
n153 Id. at 44,475-76. The FDA cited the following studies in support of this conclusion: S. Chapman & B. Fitzgerald, Brand Preference
and Advertising Recall in Adolescent Smokers: Some Implications for Health Promotion, 72 AM. J. PUB. HEALTH 491 (1982); P. P. Aitken & D. R. Eadie, Reinforcing Effects of Cigarette Advertising on Under-Age Smoking, 85 BRIT. J. ADDICTION 399 (1990); A. O. Goldstein et al., Relationship Between High School Student Smoking and Recognition of Cigarette Advertisements, 110 J. PEDIATRICS 488
(1987); G. L. Botvin et al., Smoking Behavior of Adolescents Exposed to Cigarette Advertising, 108 PUB. HEALTH REP. 217 (1993); M.
Klitzner et al., Cigarette Advertising and Adolescent Experimentation With Smoking, 86 BRIT. J. ADDICTION 287 (1991); P. P. Aitken et
al., Predisposing Effects of Cigarette Advertising on Children's Intentions to Smoke When Older, 86 BRIT. J. ADDICTION 383 (1991); D.
L. O'Connell et al., Cigarette Smoking and Drug Use in Schoolchildren: II. Factors Associated With Smoking, 10 INT'L J. EPIDEMIOLOGY 223 (1981); H. M. Alexander et al., Cigarette Smoking and Drug Use in Schoolchildren: IV. Factors Associated With Changes in Smoking Behaviour, 12 INT'L J. EPIDEMIOLOGY 59 (1983). Id. at 44,476 n.99.
The FDA relied on studies to conclude that advertising contributes to children's overestimation of smoking prevalence in society. Id.
44,476 n.102 (citing L. Chassin, et al., Predicting the Onset of Cigarette Smoking in Adolescents: A Longitudinal Study, 14 J. APPLIED
SOC. PSYCHOL. 224 (1984); L. M. Collins et al., Psychosocial Predictors of Young Adolescent Cigarette Smoking: A Sixteen-Month,
Three-Wave Longitudinal Study, 17 J. APPLIED SOC. PSYCHOL. 554 (1987); S. Sussman et al., Adolescent Nonsmokers, Triers, and Regular Smokers' Estimates of Cigarette Smoking Prevalence: When do Overestimations Occur and by Whom?, 18 J. APPLIED SOC. PSYCHOL. 537 (1988); S. J. Sherman et al., The False Consensus Effect in Estimates of Smoking Prevalence: Underlying Mechanisms, 9 PERSONALITY AND SOC. PSYCHOL. BULL. 197 (1983); G. J. Botvin et al., Smoking Behavior of Adolescents Exposed to Cigarette Advertising, 108 PUB. HEALTH REP. 217 (1993)).
In addition, the FDA reviewed studies indicating that certain advertising campaigns are well-recalled by children. Id. at 44,476 n.103
(citing J. P. Pierce et al., Does Tobacco Advertising Target Young People to Start Smoking?, 266 J. AM. MED. ASS'N 3154 (1991); P. M.
Fischer et al., Brand Logo Recognition by Children Aged 3 to 6 Years: Mickey Mouse and Old Joe Camel, 266 J. AM. MED. ASS'N 3145
(1991); G. B. Hastings et al., Cigarette Advertising and Children's Smoking: Why Reg Was Withdrawn, 309 BRIT. MED. J. 933 (1994); J. P.
Pierce et al., Smoking Initiation by Adolescent Girls, 1944 Through 1988: An Association With Targeted Advertising, 271 J. AM. MED.
ASS'N 608 (1991). The FDA also concluded that studies indicated that the "Joe Camel" campaign was particularly well-known by subject
children. Id. at 44,476 n.104 (citing P. M. Fischer et al., Brand Logo Recognition by Children Aged 3 to 6 Years: Mickey Mouse and Old Joe
the Camel, 266 J. AM. MED. ASS'N 3145 (1991); J. P. Pierce et al., Does Tobacco Advertising Target Young People to Start Smoking? 266
J. AM. MED. ASS'N 3154 (1991)).
n154 Id. at 44,468 (citing R. E. PETTY & J. T. CACIOPPO, COMMUNICATION AND PERSUASION: CENTRAL AND PERIPHERAL
ROUTES TO ATTITUDE CHANGE (1986)). The FDA cited the Elaboration Likelihood Model, which is based on a social psychological
theory that suggests that people process information more or less thoroughly and deeply depending on various factors including cognitive
development. Under this model, the FDA explained, persuasion can be accomplished through the "peripheral" or the "central" route:
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8 Comm. L. & Pol'y 267, *
The central route refers to the process by which a person reads the messages or information contained in the advertisement and thinks carefully about it and is influenced by the strength of its arguments. The peripheral route is a process in
which individuals, particularly young people, are more likely to pay attention and be persuaded by peripheral cues such
as attractive models, color and scenery, which are unrelated to the primary parts of the message. Therefore, a young person, or anyone who is unmotivated or unable to carefully consider the arguments in a message, is likely to be persuaded
via the peripheral route.
Id. (emphasis added).
n155 See generally Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 556-61 (2001).
n156 529 U.S. 120 (2000).
n157 Id. at 131-32 (rejecting the FDA's assertion that it had regulatory jurisdiction over nicotine as a "drug" and tobacco products as "drug
delivery devices").
n158 Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents; Revocation, 65 Fed. Reg. 17,135 (2000) (Food and Drug Administration, HHS), available at
http://www.fda.gov/OHRMS/DOCKETS/98fr/033100c.txt.
n159 Youth Smoking Prevention and Public Health Protection Act, S. 2626, 107th Congress (2002), available at
http://thomas.loc.gov/cgi-bin/bdquery/z?d107:s.02626: (introduced by Sen. Edward Kennedy (D-MA) on June 14, 2002, and referred that
date to the Senate Committee on Health, Education, Labor and Pensions, where it remains pending); National Cancer Act of 2002, S. 1976,
107th Congress (2002), available at http://thomas.loc.gov/cgi-bin/bdquery/z?d107:s.01976: (introduced by Sen. Dianne Feinstein (D-CA) on
Feb. 28, 2002, and referred that date to the Senate Committee on Health, Education, Labor and Pensions, where it remains pending); FDA
Tobacco Authority Amendments Act, H.R. 1097, 107th Congress (2001), available at
http://thomas.loc.gov/cgi-bin/bdquery/z?d107:h.r.01097: (introduced by Rep. Greg Ganske (R-IA) on March 20, 2001, and referred on April
2, 2001, to the House Subcommittee on Health, where it remains pending).
n160 Master Settlement Agreement, supra note 142. In addition, four other states--Florida, Minnesota, Texas and Mississippi--entered into
similar separate settlement agreements with tobacco manufacturers. See National Association of Attorneys General, NAAG Projects: Tobacco, at http://naag.org/issues/issue-tobacco.php (last visited Jan. 20, 2003). For a discussion of the constitutionality of holding non-signing
tobacco manufacturers to the terms and provisions of the Master Settlement Agreement, see generally Lori Ann Lukas, Note, The Tobacco
Industry and the First Amendment: An Analysis of the 1998 Master Settlement Agreement, 14 J.L. & HEALTH 297 (1999/2000).
n161 Master Agreement, supra note 142, at 14-20 pt. III (c).
n162 Id. at 17 pt. III (d). The MSA defines "outdoor advertising" as including billboards and signs and placards in arenas, stadiums, shopping malls and video game arcades unless located in an "adult-only" location where those under the legal age are prohibited. Id. at 7-8 pt. II
(ii). It should be noted that the MSA excludes outdoor advertising that is less than fourteen square feet, located on a tobacco manufacturing
facility, or located on the property of retail establishments that sell tobacco products. Id.
n163 See id. at 8 pt. II (ii).
n164 533 U.S. 525 (2001).
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8 Comm. L. & Pol'y 267, *
n165 MASS. REGS. CODE tit. 940, §§ 21.04, 21.06 (2000).
n166 Id.
n167 See supra notes 162 and 163 and accompanying text. Massachusetts was one of the signatory states to the Master Settlement Agreement.
n168 Lorillard Tobacco Co. v. Reilly, 76 F. Supp. 2d 124 (D. Mass. 1999) (Lorillard I), aff'd in part and rev'd in part sub nom. Consolidated Cigar Corp. v. Reilly, 218 F.3d 30 (1st Cir. 2000), aff'd in part and rev'd in part, 533 U.S. 525 (2001).
n169 Lorillard Tobacco Co. v. Reilly, 84 F. Supp. 2d 180 (D. Mass. 2000) (Lorillard II), aff'd in part and rev'd in part sub nom. Consolidated Cigar Corp. v. Reilly, 218 F.3d 30 (1st Cir. 2000), aff'd in part and rev'd in part Lorillard Tobacco Co. v. Reilly, 533 U.S. 525
(2001).
n170 Consolidated Cigar Corp. v. Reilly, 218 F.3d 30 (1st Cir. 2000), aff'd in part and rev'd in part sub nom. Lorillard Tobacco Co. v.
Reilly, 533 U.S. 525 (2001).
n171 Id. at 41.
n172 Id. at 53.
n173 See Steve Jarvis, Big Tobacco's Marketing Practices Challenged by States, MARKETING NEWS, May 21, 2001, at 11.
n174 Lorillard Tobacco Co., 533 U.S. at 551 (Chief Justice Rehnquist and Justices Scalia, Kennedy and Thomas joined Justice O'Connor
in the holding on the pre-emption issue).
n175 Id. at 551-52.
n176 Id. at 597-98 (Stevens, J., concurring in part, concurring in the judgment, and dissenting in part) (joined in this part by Justices Ginsburg, Breyer and Souter).
n177 Id. at 553.
n178 Id. at 554.
n179 Id at 554-55.
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8 Comm. L. & Pol'y 267, *
n180 Id. (joined by Chief Justice Rehnquist and Justices Kennedy, Scalia, Souter and Thomas on this point). In a concurring opinion, Justice Kennedy, joined by Justice Scalia, expressed concern that the Central Hudson test failed to adequately protect truthful, non-misleading
commercial speech. Id. at 571-72 (Kennedy, J., concurring in part and concurring in the judgment). However, he agreed with Justice
O'Connor that it was not necessary to the disposition of the case to consider abandoning the test in favor another constitutional standard. Id.
n181 Id.
n182 Id. at 555.
n183 Id. (citing Greater New Orleans Broad. Ass'n v. United States, 527 U.S. 173, 188 (1999) (quoting Edenfield v. Fane, 507 U.S. 761,
770-71 (1993)).
n184 Id.
n185 Id. at 556-57.
n186 Id. at 557-561.
n187 Id. Justice O'Connor stated that the FDA had "considered several studies of tobacco advertising and trends in the use of various tobacco products" and had "made specific findings with respect to smokeless tobacco." Id. at 558-59.
n188 Id. at 557.
n189 Id. at 561 (emphasis added). In a concurring opinion joined by Justice Scalia, Justice Kennedy concluded that the majority's ruling
under the third Central Hudson factor was unnecessary and therefore gratuitous. Id. at 571-72 (Kennedy, J., concurring in part and concurring in the judgment). He concluded that because the regulations were clearly unconstitutional under the fourth Central Hudson factor alone,
application of the third factor was not needed. Id.
n190 Id. at 566.
n191 Id. at 556.
n192 Id. at 561 (Justice O'Connor was joined on this point by Chief Justice Rehnquist and Justices Scalia, Kennedy and Thomas).
n193 Id. at 563.
n194 Id. at 564.
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8 Comm. L. & Pol'y 267, *
n195 Id. (relying on Reno v. Am. Civil Liberties Union, 521 U.S. 844, 875 (1997)).
n196 See Reno, 521 U.S. at 849.
n197 Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 565 (2001).
n198 Final Rule, 61 Fed. Reg. 44,396, 44,506 (Aug. 28, 1996).
n199 Id. (noting that small retailers would be unable to communicate to passing adults that tobacco products were sold inside but stating
that the ban was "necessary to keep outdoor advertising away from areas where children are likely to congregate daily").
n200 Lorillard Tobacco Co., 533 U.S. at 601-03 (Stevens, J., concurring in part, concurring in the judgment in part, and dissenting in part),
590 (Souter, J., concurring in part and dissenting in part). Justice Stevens was joined by Justices Ginsburg and Breyer.
n201 Id. at 601-02 (Stevens, J., concurring in part, concurring in the judgment in part, and dissenting in part).
n202 Id. at 601 (Stevens, J., concurring in part, concurring in the judgment in part, and dissenting in part).
n203 Id. at 572 (Thomas, J., concurring in part and concurring in the judgment). Justices Kennedy and Scalia expressed concern that the
Central Hudson test provided too little protection for protected commercial speech but agreed with Justice O'Connor that it was not necessary to adopt a new constitutional standard in the case. See supra note 180.
n204 Id. at 572 (Stevens, J., concurring in part, concurring in the judgment in part, and dissenting in part).
n205 Id. (Thomas, J., concurring in part and concurring in the judgment).
n206 Id. at 575 (Thomas, J., concurring in part and concurring in the judgment).
n207 Id. at 573 (Thomas, J., concurring in part and concurring in the judgment).
n208 Id. at 576-77 (Thomas, J., concurring in part and concurring in the judgment).
n209 Id. (Thomas, J., concurring in part and concurring in the judgment).
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8 Comm. L. & Pol'y 267, *
n210 Id. at 582-83 (Thomas, J., concurring in part and concurring in the judgment).
n211 Id. at 584-85 (Thomas, J., concurring in part and concurring in the judgment).
n212 Id. (Thomas, J., concurring in part and concurring in the judgment).
n213 See id. at 589-90 (Thomas, J., concurring in part and concurring in the judgment).
n214 Id. (Thomas, J., concurring in part and concurring in the judgment).
n215 Id. at 590 (Thomas, J., concurring in part and concurring in the judgment) (suggesting that "no principle of law or logic ... would preclude the imposition of restrictions on fast food and alcohol advertising similar to those [the State of Massachusetts] seeks to impose on tobacco advertising").
n216 Id. (Thomas, J., concurring in part and concurring in the judgment).
n217 For discussion of Justice Thomas' positions in commercial speech decisions, see generally Hoefges and Rivera-Sanchez, supra note 2
at 363-85; David L. Hudson, Essay, Justice Clarence Thomas: The Emergence of a Commercial-Speech Protector, 35 CREIGHTON L.
REV. 485 (2002) (including discussion of Justice Thomas' position in Lorillard Tobacco).
n218 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518 (Thomas, J., concurring in part and concurring in the judgment). This position
was described by one commentator as the most "radical" taken by any of the justices on the Supreme Court regarding the commercial speech
doctrine. Kathleen M. Sullivan, Cheap Spirits, Cigarettes, and Free Speech: The Implications of 44 Liquormart, 1996 SUP. CT. REV. 123,
141-42 (1996).
n219 Greater New Orleans Broad. Ass'n v. United States, 527 U.S. 173, 197 (1999) (Thomas, J., concurring in the judgment). Justice
Thomas citied to his concurring opinion in 44 Liquormart. Id. (citing 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518 (1996)).
n220 Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 573 (1980) (Blackmun, J., concurring in the judgment)
(stating that the Central Hudson test is not appropriate when the government "seeks to suppress information about a product in order to manipulate a private economic decision that [the government] cannot or has not regulated or outlawed directly"). Likewise, at least one commentator has suggested that the Central Hudson analysis fails to provide adequate constitutional protection for commercial speech against
legislation seeking to influence lawful consumer decisions in the marketplace against "subjective evaluations of individual administrators,
legislators, and judges." Troy, supra note 2, at 142.
n221 277 F.3d 622, 624-25 (2d Cir. 2002).
n222 165 F. Supp. 2d 403, 408-11, 422 (E.D. N.Y. 2001).
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8 Comm. L. & Pol'y 267, *
n223 See Long Island Bd. of Realtors, 277 F.2d at 626; Infinity Outdoor, Inc., 165 F. Supp. 2d at 414-15. Cf. Horizon Outdoor, LLC v. City
of Industry, California, 228 F. Supp. 2d 1113 (C.D. Cal. 2002) (temporarily enjoining enforcement of city ordinance that required permission
of certain city or state officials before erecting outdoor signs or advertising).
n224 256 F.3d 1061 (8th Cir. 2001).
n225 Id. at 1076-77. The regulations in question prohibited with limited exceptions "advertising or use of any means or media to induce
persons to buy liquor." Id. at 1068 (quoting UTAH CODE ANN. § 32A-12-401(6) (2000)).
n226 Id. at 1069.
n227 Id. at 1069-70.
n228 Id. at 1075.
n229 272 F.3d 1030, 1032 (8th Cir. 2001).
n230 Id. at 1032 (quoting IOWA CODE § 142A.6(6) (2000)).
n231 Id. at 1037.
n232 Id. at 1035.
n233 Id. at 1039.
n234 161 F. Supp. 2d 796, 808, 799, 811-12 (N.D. Ohio 2001). The court found that the city ordinance was preempted by an Ohio state law
that provided that only the state government can regulate alcohol advertising in Ohio. Id. at 802-02, 808. However, the court found the ordinance unconstitutional under the First Amendment utilizing the Central Hudson analysis. Id. at 808-12.
n235 Id. at 798-99.
n236 Id. at 812.
n237 Id. at 808-10.
n238 Id. at 810-12.
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8 Comm. L. & Pol'y 267, *
n239 Id. at 811.
n240 Id. at 811-12.
n241 Id.
n242 Id.
n243 See Fed. of Adver. Indus. Representatives, Inc. v. City of Chicago, 2002 WL 398531 (N.D. Ill. 2002) (No. 97 C 7619) (published order in the case denying the challengers' motion for attorneys' fees after Chicago repealed the ordinance in question and rendered the First
Amendment challenge moot). The ordinance in question banned alcohol and cigarette advertisements in a "publicly visible location" although the ordinance provided exceptions for alcohol and cigarette advertising near designated retail establishments, on city transit vehicles,
on property owned by the state sports facility authority, on property adjacent to interstate highways, in certain industrial zones, and at
Comiskey Park, Soldier Field, the United Center and Wrigley Field. Fed'n of Adver. Indus. Representatives, Inc. v. City of Chicago, 189
F.3d 633, 634 n.1 (7th Cir. 1999) (setting out the text of CHICAGO MUNICIPAL CODE, tit. 17, § 5.17).
n244 Fed'n of Adver. Indus. Representatives, Inc. v. City of Chicago, 12 F. Supp. 2d 844, 852, 853 (N.D. Ill. 1998), aff'd in part, rev'd in
part, 189 F.3d 633 (7th Cir. 1999) (also finding that the alcohol advertising provisions were not severable from the cigarette advertising provisions of the ordinance).
n245 Fed'n of Adver. Indus. Representatives, 189 F.3d at 640. The Seventh Circuit also reversed the federal district court on the severability issue. Id.
n246 Fed. of Adver. Indus. Representatives, Inc. v. City of Chicago, 529 U.S. 1066 (2000).
n247 This point may be tempered somewhat because of the posture in which the case arrived at the Court. The Lorillard Tobacco case was
decided by the Court on appeal from summary judgment, which required the Court to view the evidence most favorably to the non-moving
party--the state. Justice O'Connor pointed this out in the majority opinion when she concluded that the state's regulatory scheme seemed to
be based on more than "mere speculation and conjecture." Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 561 (2001).
n248 In the only commercial speech case decided by the Supreme Court to date after Lorillard Tobacco, the Court avoided the evidentiary
issue under the third Central Hudson factor. In that case, the Court struck down a federal ban on direct-to-consumer advertising by pharmacists for compounded prescription drugs. See Thompson v. W. States Med. Ctr., 535 U.S. 357, 122 S.Ct. 1497, 1500 (2002). Compounding
is the lawful practice by a doctor or pharmacist that "combines, mixes, or alters ingredients to create a medication tailored to the needs of an
individual patient" such as removing a particular ingredient to which a specific patient might have an allergy. Id. The regulations in question
were added by Congress in 1997 to the Federal Food, Drug and Cosmetic Act and specifically stated that pharmacies, licensed pharmacists
and licensed physicians could not lawfully "advertise or promote the compounding of any particular drug, class of drug, or type of drug" but
could "advertise or promote the compounding service." Id. at 1502 (citing the Food and Drug Modernization Act of 1997, tit. 21 U.S.C. at §
353a(c)). In an opinion by Justice O'Connor, the Western States Court ruled that the federal ban was not sufficiently narrow under the fourth
Central Hudson factor and unconstitutional on that ground alone. Id. at 1506. The Court thus found it unnecessary to make a conclusive ruling on the issue of whether the government had established that the advertising ban for compounded drugs directly advanced the governmental interest in preventing the development of a mass demand for compounded prescription drugs that had not been specifically approved
by the FDA. Id. at 1506.
In two cases involving the constitutionality of government regulations that require producers of agricultural products to subsidize generic advertising for those products, the Supreme Court issued rulings that avoided application of First Amendment commercial speech principles including the Central Hudson analysis. See supra note 39.
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n249 See Thompson, 122 S.Ct. at 2426.
n250 See Rubin v. Coors Brewing Co., 514 U.S. 476, 490-91 (1995).
n251 See supra note 110 and accompanying text.
n252 See supra notes 111 and 112, and accompanying text.
n253 See supra note 113 and accompanying text.
n254 535 U.S. 357, 122 S.Ct. 1497 (2002).
n255 12 S.Ct. at 1500.
n256 Id. at 1507.
n257 See supra notes 200-201 and accompanying text.
n258 See Hoefges & Rivera-Sanchez, supra note 2.
n259 Ronald Bayer et al., Tobacco Advertising in the United States: A Proposal for a Constitutionally Acceptable Form of Regulation, 287
J. AM. MED. ASSOC. 2990, 2994 (2002).
n260 Id. at 2994. The authors noted that the neither the Supreme Court nor any lower courts had decided the constitutionality of a "content-based tax on commercial speech." Id.
n261 Id. at 2994-95. The authors took that position that such requirements would require an amendment to the Federal Cigarette Labeling
and Advertising Act and would constitute a form of "social marketing-informed messages designed to neutralize the seductive impact of the
advertisements themselves." Id. at 2995.
n262 Id. at 2995. The authors proposed "that one full side of each cigarette package be devoted to a graphic depiction of the dangers of
smoking." Id. The authors noted that this and their other proposed regulations "were designed to combat bad speech with more speech" but
would "evoke the full resistance of the tobacco industry and its allies in the Congress." Id. They noted that the Canadian regulations that required graphic visual warnings on cigarettes have been challenged in the Canadian courts by the tobacco industry. Id.
n263 See supra note 159.
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8 Comm. L. & Pol'y 267, *
n264 See id.
n265 See Troy, supra note 2, at 142.