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The Burger Court (1969–86)

First Amendment

What did the Burger Court do with respect to commercial speech?

In 1942, the U.S. Supreme Court ruled in Valentine v. Chrestensen that the “Constitution imposes no such restraint on government as respects purely commercial advertising.” However, the Burger Court overruled this precedent, recognizing that consumers have a First Amendment right to receive information and ideas from commercial advertising. In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), the Court recognized that “the free flow of commercial information is indispensable” and that consumers’ “interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.” The next year, in Bates v. State Bar of Arizona (1977), the U.S. Supreme Court ruled that attorneys had a First Amendment right to engage in truthful newspaper advertising.

In its 1980 decision Central Hudson Gas & Electric Co. v. Public Service Commission, the Court struck down a ban on utility advertising. More importantly, the Court established the so-called Central Hudson test to determine whether restrictions on commercial speech were constitutional. As a threshold prong, the commercial speech must concern lawful activity and not be misleading. The government can regulate false and misleading speech. Then, the government must have a substantial interest in its regulation; regulation must directly advance the government’s substantial interest; and the restriction must be narrowly drawn.



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