Is Commercial Speech Free Speech?
Imagine two solicitors on the mall or similar common area of a typical public college or university campus. One distributes literature in support of a political cause; the other hands out pamphlets that advertise a cellular telephone service.
Which solicitor’s activity is protected by the U.S. Constitution’s free speech guarantees under the First Amendment? The answer: both.
Since 1976, the U.S. Supreme Court has held that the First Amendment also precludes government from wholesale regulation of commercial speech, which the Court defines as expression “related solely to the economic interests of the speaker and its audience.”
Not all advertising enjoys First Amendment safeguards; false or misleading solicitation is not protected by the Constitution.
But courts now hold that any attempt by public entities (such as public postsecondary institutions) to control commercial speech must advance a “substantial” government interest, and may not be more extensive than necessary to serve that interest.
What does that mean for a school that wants to outlaw the presence of certain kinds of
advertising on its campus? According to a California federal court, it meant that a community college district in that state could not prohibit commercial advertising for alcoholic beverages and tobacco.
In Khademi v. South Orange Community College District (a 2002 decision), the court found that no “compelling governmental interest” was served in banning commercial speech with such content.
More recently, a federal court struck down a Pennsylvania statute that banned advertising for alcoholic beverages in newspapers, yearbooks and similar publications by public institutions.
In Pitt News v. Pappert, the U.S. Court of Appeals for the Third Circuit found that a ban on advertising in college newspapers would not achieve the legitimate governmental interest of curbing underage drinking.
On behalf of the court, Judge Alito (who would later be named to the U.S. Supreme Court) wrote that even if students did not see liquor ads in their college newspapers, they would “still be exposed to a torrent of beer ads on television and the radio, and . . . see alcoholic beverage ads in other publications” that were widely available on campus.
The Constitution does not require that a public institution serve as an advertising marketplace. When an institution seeks to distinguish between commercial and non-commercial speech, or restrict certain kinds of commercial speech on the basis of content, the school’s actions must not offend the First Amendment rights of the advertiser.
Published in the Spring 2006 Edition of In Brief