The First Amendment and Advertising

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
 Determining whether the law advances that interest
 Determining if the law is more extensive than
Lawyer Advertising
Bates v. State Bar of Arizona – 433 U.S. 350
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
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
Struck down a MA law prohibiting outdoor tobacco
ads within a 1,000 ft. radius of all schools or
 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.”