Part 1- Foundations of, Chapter 3: Business and the Constitution, Doc 6

Commercial Speech and the Central Hudson Test The Court’s approach to commercial speech regulation relies on the Central Hudson test, which sets conditions under which the government may regulate commercial speech. According to the test: 1. 2. 3. 4. The speech must be lawful and not misleading. The government must have a substantial interest in regulating the speech. The regulation must directly advance the government’s interest. The regulation must be no more extensive than necessary. In 44 Liquormart v. Rhode Island, the Court found that Rhode Island’s ban on alcohol price advertising failed this test. The state argued that the ban supported temperance by reducing alcohol consumption through higher prices. However, the Court noted that Rhode Island provided no concrete evidence linking the ban to a significant reduction in alcohol consumption and offered alternatives, like taxes or educational campaigns, as less restrictive means to achieve temperance. Thus, the ban was deemed unconstitutional because it did not meet the Central Hudson requirements. Government Speech and Compelled Subsidization In Johanns v. Livestock Marketing Association, the Court addressed “government speech”—communications controlled by the government, such as the “Beef. It’s What’s for Dinner” campaign. Here, the government required beef producers to fund advertising that promoted beef consumption. The Court ruled that because this advertising was classified as government speech, the First Amendment did not prevent the government from mandating financial support for these messages, even if some producers disagreed with the content. This decision provides significant latitude for government-controlled promotional campaigns funded by industryspecific assessments. Due Process and Equal Protection The Fourteenth Amendment ensures “due process” and “equal protection.” Procedural due process requires fair procedures before depriving individuals of life, liberty, or property, encompassing rights such as public hearings and fair trials. Substantive due process involves challenging the government’s right to enact certain laws, particularly those infringing upon fundamental rights. Though economic rights were initially protected under substantive due process, this focus shifted, with substantive due process now mainly applied to personal rights, such as privacy and family matters, where the government must show a compelling interest. Equal protection challenges arise when laws discriminate among people. In cases not involving fundamental rights or suspect classifications like race, rational basis review applies, where a law is valid as long as it is rationally related to a legitimate government objective. For example, in Fitzgerald v. Racing Association of Central Iowa, a tax law differentiating between racetrack and riverboat gambling was upheld, with the Court finding that tax distinctions were permissible as long as they were plausibly related to state policy objectives. Conclusion This section emphasizes that First Amendment protections for commercial speech require careful government justification under the Central Hudson test, with the government also allowed substantial discretion in cases of government speech. Due process and equal protection analyses further ensure that laws align with constitutional standards, particularly when fundamental rights or unequal treatment are at stake.