What is Commercial Speech?

Donn Saylor

In the United States, commercial speech is legally defined as speech performed by or on the part of a particular business with the objective of making money. In the first amendment to the United States Constitution, all American citizens are granted the right of free speech, and as the advertising industry and economy have evolved, the first amendment has come to include and protect commercial speech. Additionally, the U.S. Supreme Court has adopted special first amendment safeguards to protect such speech.

Commercial speech is protected by the First Amendment of the U.S. Constitution.
Commercial speech is protected by the First Amendment of the U.S. Constitution.

In 1942, the case of Valentine v. Chrestensen came before the Supreme Court and would pave the way for commercial speech protection under United States law. F.J. Chrestensen was advertising his exhibit of a World War I submarine by handing out fliers on the streets of New York City. The city's police commissioner, Lewis Valentine, stopped Chrestensen from advertising the exhibition, stating that fliers could only be handed out to disseminate information or assemble a protest gathering. Chrestensen then redesigned the fliers by removing the admission price to the exhibition and printing a protest against Valentine's ruling.

Rulings by the United States Supreme Court have protected commercial speech under the First Amendment.
Rulings by the United States Supreme Court have protected commercial speech under the First Amendment.

The case eventually landed before the U.S. Supreme Court, which ruled that advertising—or commercial speech—was not protected under the first amendment. The court cited a list of reasons for reaching this conclusion, the first being that political speech, which is protected under the first amendment, is more important to the success of a nation than advertising speech. Though it would be challenged several times over the ensuing decades, this ruling would stand until the 1970s, when it was finally decided that such advertising speech was of value to consumer decision-making processes.

The case for commercial speech protection was further cemented in 1996, when a Rhode Island liquor store sued to overturn that state's ban on advertising alcohol prices. 44 Liquormart, Inc. v. Rhode Island also landed before the U.S. Supreme Court, where Justice Clarence Thomas noted, "I do not see a philosophical or historical basis for asserting that 'commercial speech' is of 'lower value' than 'noncommercial' speech." Despite Thomas's viewpoint, however, commercial speech is often regarded as less important than other forms of free speech, as it is viewed by many as a strictly economic issue.

Commercial speech is still a debated issue under U.S. law. Because of the Supreme Court's rather vague safeguard that one form of free speech is of no more value than another form of free speech, strict guidelines of what exactly constitutes commercial speech remain unclear. As long as any definitive rules are elusive, cases will continue to come up that challenge first amendment protection for commercial speech.

Speech performed on behalf of promoting a business has the same protections as other free speech in public settings.
Speech performed on behalf of promoting a business has the same protections as other free speech in public settings.

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