The First Amendment
and Advertising
The Supreme Court and Tobacco,
Lawyer and Liquor Advertising
By DJ Ford
The Central Hudson Test



The Court established a four-prong test in
Central Hudson Gas & Electric Corp. v. Public Service
Commission of NY, 477 U.S. 564 (1980)
Why? There was a state regulation banning
electric utilities from using all ads promoting the
use of electricity.
The Court struck down this ban, saying the
blanket ban violated the First Amendment
The Prongs

To be upheld the ad restriction must pass The
Courts test, which entails, in the following order:
Determining whether the speech is protected by the
First Amendment.
 Determining whether the government interest is
substantial.
 Determining whether the law advances that interest
 Determining if the law is more extensive than
necessary

Lawyer Advertising

Bates v. State Bar of Arizona – 433 U.S. 350
(1977)
The Court upheld a ban on price advertising for
complex legal services
 Misleading because lawyers can NOT put a definitive
tag how much it’s going to cost.
 Divorce proceedings, defamation suits, etc.
 Uncontested divorce proceeding price may be
advertised. Why? It may have a fixed price.

Lawyer Advertising

In-person advertising also prohibited
Person is distraught – divorce, medical malpractice
 Privacy is invaded
 Coercion, intimidation
 May demand an immediate response

Alcohol Advertising

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The government always passes the second prong
of the test – it does have a substantial interest in
curbing consumption of alcohol.
But remember, the law must pass prong #1 to
get to prong #2, and then pass 3 and 4 as well.
Alcohol Advertising

Liquormart, Inc. v. Rhode Island – 517 U.S. 484 (1996)
 Struck down an RI ban on alcohol price advertising
 The state failed to prove that without the ban,
alcohol sales and consumption would increase

Rubin v. Coors Brewing Co. - 514 U.S. 476 (1995)
 Struck down a ban on providing alcohol content on
the label
 Failed prong #3
Tobacco Advertising

Lorillard Tobacco Co v. Reilly – 527 U.S. 173
(1999)
Struck down a MA law prohibiting outdoor tobacco
ads within a 1,000 ft. radius of all schools or
playgrounds
 Failed prong #4


The Court struck down another MA law
prohibiting indoor tobacco ads lower than five
feet from the ground. Failed both #3 and #4.
Justice O’ Connor
“Not all children are less than five feet tall, and
those that are certainly have the ability to look
up and take in their surroundings.”