The Rehnquist Court (1986–2005)

First Amendment

How did the Rehnquist Court treat restrictions on commercial speech?

The U.S. Supreme Court in the Rehnquist era became more protective of commercial speech. Commercial speech is a type of speech that does no more than propose a commercial transaction. For most of the twentieth century, purely commercial advertising received no First Amendment protection. It was not until the mid-1970s that the Burger Court first ruled that commercial speech was entitled to some First Amendment protection. However, commercial speech made far more advances during the Rehnquist era.

In its 1996 decision 44 Liquormart, Inc. v. Rhode Island, the Court invalidated two Rhode Island laws that prohibited sellers from advertising the price of alcoholic beverages. The state argued that the measures would encourage temperance. The U.S. Supreme Court unanimously invalidated the law, finding it to be more extensive than necessary to serve the state’s interests. In his concurring opinion, Justice Clarence Thomas went so far as to say that he did not see “a philosophical or historical basis” for giving commercial speech less First Amendment protection than noncommercial speech.

In more recent decisions, the Court rejected a federal law that banned casino gaming ads in Greater New Orleans Broadcasting Co. v. United States (1999), state restrictions on tobacco advertising in Lorillard Tobacco Co. v. Reilly (2001), and a federal law that prohibited drug providers from advertising or promoting compounded drugs in Thompson v. Western States Medical Center (2002). Even though the Court generally expanded advertisers’ First Amendment rights, the Court did not go so far as to elevate commercial speech to the same level of protection as political speech. The Court still applied the Central Hudson test to most commercial speech regulations. This test came from the Burger Court’s decision in Central Gas & Electric v. Public Service Commission.


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