Cases Involving Advertising and the First Amendment

Case #

Year

Case

Court Making Final Decision

Issue

Message

Media

Outcome & Significance/Degree of Protection

1

1942

Valentine v. Chrestensen

Supreme Court

N. Y. City Police Commissioner Valentine forbids Chrestensen from distributing handbills in the street

Chrestensen promoted tours of a WWI submarine

Handbills

Purely commercial advertising receives no protection.

None

2

1964

New York Times v. Sullivan

Supreme Court

Montgomery, AL Police Commissioner L.B. Sullivan sues N.Y.Times for libel in its editorial ad

Chronicle of African American students’ struggle for civil rights at AL State College

Newspaper editorial ad

Protection granted to advertising for political or social issues.

Some

3

1975

Bigelow v. Virginia

Supreme Court

Virginia Weekly managing editor/director originally convicted of violating VA code prohibiting promotion of abortions

New York abortion service ad announces availability

Newspaper

Advertising that contains "factual material of clear ‘public interest’" is worthy of protection.

Slightly more

4

1976

Virginia Board of Pharmacy v. Virginia Citizens Consumer Council1

Supreme Court

Consumer groups challenged VA statute banning price advertising for prescription drugs

Rx drug prices

No particular medium involved

Court overturned ban on basis of consumers’ need for information.

More

5

1977

Bates v. State Bar of Arizona

Supreme Court

State Bar Association banned lawyer advertising of prices

Price advertising by lawyers

No particular medium involved

Consumers’ need for information deemed more important than controlling potential unprofessional-ism. Court acknowledged right to restrict time, place and manner of advertising.

More

6

1980

Central Hudson Gas & Electric v. Public Service Commission of New York2

Supreme Court

N.Y. Public Service Commission ordered utility to stop promoting consumption of electricity.

Public utility promoted purchasing of appliances.

Any

Restriction struck down. Court offered a 4-part test for defining when commercial speech can be restricted. As applied later it had mixed results protecting advertising in some cases and upholding restrictions of commercial speech in others.

Potentially much  more.

7

1981

Metromedia, Inc. v. City of San Diego

Supreme Court

City ordinance limiting most outdoor advertising within San Diego upheld.

With some exceptions (political advertising), almost any message would be restricted.

Billboards in city

Though it used the Hudson Test, the Court allows the restriction to stand by reverting to the distinction between commercial and non-commercial speech.

Less

8

1986

Posadas de Puerto Rico v. Tourism Company

Supreme Court

Law prohibited promotion of casino gambling to Puerto Rican citizens.

Gambling by residents.

Any

Upheld ban based on superficial (no evidence offered) application of Hudson Test. Because the government could ban gambling it could also ban the advertising for it.

Less

9

1989

S.U.N.Y. v. Fox

Supreme Court

Statue University of New York students challenged University’s prohibition of for-profit activities on campus.

Commercialpromotion of housewares and non-commercial discussion of tips on good homemaking.

Dorm-room product demonstra-tions that also included non-commercial content

Affirmed ban by modifying the fourth part of the Hudson Test in saying the restriction of speech need not be the least restrictive, just narrowly defined.

Potentially a lot less

10

1993

City of Cincinnati v. Discovery Network, Inc.

Supreme Court

Publishing company challenged municipal code barring distribution of free advertising magazines in public racks. City argues that ban will help keep city clean.

Discovery Network’s ads.

Free advertising magazines in racks. Newspapers distributed similarly were allowed.

Because the ordinance was not content-neutral, (banned advertising but not newspapers) it could not qualify as a time, place or manner restriction so it was rejected.

More

11

1993

Edenfield v. Fane

Supreme Court

CPA Fane challenged Florida CPA Board’s ban on uninvited personal solicitation by CPAs.

Truthful, non-deceptive proposal of a business agreement.

Personal sales.

The Court deemed the prohibition unconstitutional based partially on the public’s need for information.

More

12

1993

United States v. Edge Broadcasting Co.

Supreme Court

Federal law prohibits promotion of lotteries in states that do not have lotteries. This was challenged by North Carolina broadcaster who wanted to accept Virginia lottery advertising.

On the border between N.C. and Virginia, most of the stations revenue and listeners were from Virginia.

Radio was focus of case but federal law applies to all media.

The Court upheld the law based on the Hudson Test. But it also invoked the Posadas logic by saying that vice products like gambling are not constitutionally protected and the power to prohibit them includes the lesser power to ban advertising for them.

Less

13

1995

Rubin v. Coors Brewing Co.    

Supreme Court

Coors Brewing Co. challenged a federal law preventing brewers from disclosing alcohol content on beer labels.

Alcohol content

Labeling

The Court unanimously declared the law unconstitutional based on the inconsistency of banning disclosure of alcohol levels on beer while requiring alcohol disclosure on wine.

More

14

1995

Florida Bar v. Went For It

Supreme Court

A legal referral service challenged a Florida Bar ban on lawyers’ direct mail solicitations of accident victims and their families within 30 days of an accident.

Uninvited solicitations of accident victims and their families as clients for lawyers.

Direct mail

Based on the perceived importance of the state’s interest in protecting the legal profession and consumer privacy, the Court found the restriction constitutional. The Court also stated it was not required to provide supporting evidence.

Less

15

1996

44 Liquormart v. Rhode Island

Supreme Court

Liquor stores argued that Rhode Island laws preventing advertising of liquor prices (except in stores) were unconstitutional.

Retail liquor prices

Any

Arguing for the consumer’s need for information in a market-based economy, the Court found the laws unconstitutional.

More

16

1999

Greater New Orleans Broadcasting Assoc, Inc. v.  United States

Supreme Court

FCC rules prevented broadcasters from carrying advertising for private (not state-run or non-Indian) casino gambling.

Privately owned casino gambling

Radio and television

Based on its application of the Hudson Test, the Court could not justify the advertising restriction.

More

17

2001

Lorillard Tobacco Co. v. Reilly

Supreme Court

The four biggest U.S. cigarette producers challenged Massachusetts laws restricting outdoor advertising (including visible stadium and store signs) for tobacco products within 1,000 feet of a school or playground. P.O.S. ads had to be five feet or higher in stores that allowed children in them.

Tobacco ads

Outdoor and point-of-sale

Although cigarettes and other tobacco products had to be dealt with differently due to how they’re regulated, the Court ruled that the regulations flunked the fourth part of the Hudson Test. They were deemed unconstitutional because they were too broad.

More

18

2002

Thompson v. Western States Medical Center

Supreme Court

The FDAMA's (Food & Drug Administration’s 1997 Modernization Act’s) prohibitions on soliciting prescriptions for, and advertising, compounded drugs.

Compounded drugs

Any

Based on its application of the Hudson Test, the Court could not justify the advertising restriction.  The Act’s restrictions were deemed unconstitutional restrictions on commercial speech.

More

                                                                                 

                          

1 Rare insight into the Court’s justification for differential treatment of commercial speech is found in a footnote in Virginia Pharmacy that describes it as "more easily verifiable and more durable" than other kinds of speech (Richards, 1997, p. 159).                                                                      

2The Hudson Test: For commercial speech to come within the First Amendment, 1) it at least must concern lawful activity and not be misleading; 2) Next, it must be determined whether the asserted governmental interest to be served by the restriction on commercial speech is substantial; 3) If both inquires yield positive answers, it must then be decided whether the regulation directly advances the governmental interest asserted, and; 4) whether it is not more extensive than is necessary to serve that interest. Central Hudson Gas & Electric v. Public service Commission of New York (1980), 447 U.S. 557.