Zoey Slater's List: Law

• The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.
• These are the invaluable rights, that form a considerable part of our mild system of government; that, sending its equitable energy through all ranks and classes of men, defends the poor from the rich, the weak from the powerful, the industrious from the rapacious, the peaceable from the<!--[Volume 5, Page 63]--> violent, the tenants from the lords, and all from their superiors.

• The Twenty first Amendment cannot save Rhode Island's price  advertising ban because that Amendment does not qualify the First Amendment's  prohibition against laws abridging the freedom of speech. Although the  Twenty first Amendment--which repealed Prohibition and gave the States  the power to prohibit commerce in, or the use of, alcoholic beverages--limits  the dormant Commerce Clause's effect on a State's regulatory power over  the delivery or use of liquor within its borders, the Amendment does not  license the States to ignore their obligations under other constitutional  provisions. See, e.g., Capital Cities Cable, Inc. v. Crisp,  467  U.S. 691, 712. California v. LaRue, 409  U.S. 109, 118-119, disavowed. Because the First  Amendment must be included among those other provisions, the Twenty  first Amendment does not shield the advertising ban from constitutional  scrutiny. Pp. 28-30.
• Justice Stevens delivered the principal opinion with respect to Parts  III-VI, concluding that Rhode Island's ban on advertisements that provide  the public with accurate information about retail liquor prices is an unconstitutional  abridgment of the freedom of speech.
• regulations that entirely suppress commercial  speech in order to pursue a policy not related to consumer protection must  be reviewed with "special care," and such blanket bans should not be approved  unless the speech itself was flawed in some way, either because it was  deceptive or related to unlawful activity
• Justice Stevens, joined by Justice Kennedy, Justice Souter, and  Justice Ginsburg, concluded in Part V that because Rhode Island's advertising  ban constitutes a blanket prohibition against truthful, nonmisleading speech  about a lawful product, and serves an end unrelated to consumer protection,  it must be reviewed with "special care" under Central Hudson, 447  U. S., at 566, n. 9.

2 more annotations...

• If there is a kind of commercial speech that lacks all First Amendment protection, therefore, it must be distinguished by its content. Yet the speech whose content deprives it of protection cannot simply be speech on a commercial subject. No one would contend that our pharmacist may be prevented from being heard on the subject of whether, in general, pharmaceutical prices should be regulated, or their advertisement forbidden. Nor can it be dispositive that a commercial advertisement is noneditorial, and merely reports a fact. Purely factual matter of public interest may claim protection.
• Our question is whether speech which does "no more than propose a commercial transaction"  is so removed from any "exposition of ideas" and from "'truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government,'"  that it lacks all protection. Our answer is that it is not.

• VA. PHARMACY BD. v. VA. CONSUMER COUNCIL
• There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.
• In concluding that commercial speech, like other varieties, is protected, we of course do not hold that it can never be regulated in any way. Some forms of commercial speech regulation are surely permissible. We mention a few only to make clear that they are not before us and therefore are not foreclosed by this case.
• There is no claim, for example, that the prohibition on prescription drug price advertising is a mere time, place, and manner restriction. We have often approved restrictions of that kind provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information.

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• A municipal ordinance forbidding distribution in the streets of printed handbills bearing commercial advertising matter, held constitutional
• The question is whether the application of the ordinance to the respondent's activity was, in the circumstances, an unconstitutional abridgment of the freedom of the press and of speech.
• We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising. Whether, and to what extent, one may promote or pursue a gainful occupation in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment.
• We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.
• Whether, and to what extent, one may promote or pursue a gainful occupation in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment
• The question is not whether the legislative body may interfere with the harmless pursuit of a lawful business, but whether it must permit such pursuit by what it deems an undesirable invasion of, or interference with, the full and free use of the [55] highways by the people in fulfillment of the public use to which streets are dedicated.
• public information, none the less so because there was inextricably attached to the medium of such dissemination commercial advertising matter

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• Therefore, even if the First Amendment were thought to be primarily an instrument to enlighten public decision-making in a democracy, [fn] we could not say that the free flow of information does not serve that goal. [fn]"

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  “Commercial speech” as a constitutional doctrine — initially (and even today) an exception from the First Amendment’s normal rules — was casually suggested by a U.S. Supreme Court opinion in 1942. Then, in 1976, it was altered substantially when the Court recognized that such a talismanic exemption from the Constitution’s mandates was unsustainable. Later, it was transformed by repeated Court cases that resulted in a solid First Amendment rule that commercial speech that is neither false nor misleading is fully protected speech. By 2001, the doctrine approached maturity when the Court recognized that even tobacco advertising was entitled to significant First Amendment protection.
• In the 1942 decision Valentine v. Chrestensen, the Supreme Court, without analysis or comment, created the so-called “first commercial speech doctrine,” seemingly exempting such speech from any First Amendment protection.

  • No first amendment
• “people will perceive their own best interests if only they are well enough informed and ... the best means to that end is to open the channels of communication, rather than to close them.”
• the fact that protected speech may be offensive does not justify its suppression.”

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• • The government must assert a substantial state interest to justify the regulation. 
   
   
  • The government must demonstrate that the regulation of advertising directly advances the state interest.  
   
   
  • The regulation must be narrowly drawn, no more extensive than is necessary to serve the interest asserted by the state.

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  A speech regulation cannot unduly impinge on the speakers ability to propose a commercial transaction and the adult listeners opportunity to obtain information about products. The Attorney General has failed to show that the regulations at issue are not more extensive than necessary.
• A speech regulation cannot unduly impinge on the speakers ability to propose a commercial transaction and the adult listeners opportunity to obtain information about products. The Attorney General has failed to show that the regulations at issue are not more extensive than necessary.

• A speech regulation cannot unduly impinge on the speaker's ability to propose a commercial transaction and the adult listener's opportunity to obtain information about products. The Attorney General has failed to show that the regulations at issue are not more extensive than necessary.