American Constitutionalism in Historical Perspective (packet)

Advertising Restrictions

1. 
   Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 1976 (extends category of free speech): Blackmun: c/n immunize commercial speech from free speech protection. Ppl have important communicative interests in commercial speech, s/n limit ppl’s ability to get impt info.
   
   1. 
      Price Competition: disable price competition by restricting comm in this area. If open up have greater consumer choice. This is public interest, access to truthful info about the products we buy. More than conventional political speech, there is a democratizing impulse here.
      
   2. 
      Professional Dignity: critical of notion that professionals s/n compete. Quality can be regulated in other ways, d/n need to restrict speech. Suspicious of professional interests, suspect trying to keep power by abridging free speech interests of others.
      
   3. 
      Lesser form of const protection: licensing is tolerable in this area, overbreadth not applied
      
      1. 
         True: Truth test is more stringent than in libel area (Times v. Sullivan) b/c false facts could have neg consumer consequences. Easier to determine if facts are true or false. Also d/n have possibility of rebuttal.
         
      2. 
         Legal: legal test is more stringent than in subversive advocacy area. (Brandenburg).
         
2. 
   Central Hudson Gas v. Public Service Comm’n, 1980: the court stuck down a prohibition vs. utility company ads to stimulate demand for electricity. Ad prohibitions are presumptively unconstitutional if ads are: True, legal, no substantial purpose for the prohibition. (Blackmun doesn’t agree this is needed), prohibition not narrowly tailored to meet this purpose. (same) Blackman concurrence: s/n be able to legally limit truthfully written advertising. Very absolutist as opposed to majority who sees it ok to have a way to limit.
   
3. 
   State Univ. of NY v. Fox- prohibiting Tupperware parties on campus is sufficiently narrowly tailored (Scalia opinion). It’s commercial speech.
   
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