Commercial speech in the US is speech performed by or for a company to make money. The First Amendment protects free speech, including commercial speech, but it was not always recognized as such. The Supreme Court ruled in 1942 that commercial speech was not protected, but this changed in the 1970s. The issue remains debated and unclear guidelines lead to ongoing challenges to First Amendment protection for commercial speech.
In the United States, business speech is legally defined as speech performed by or by a particular company with the goal of making money. In the First Amendment to the US Constitution, all American citizens are granted the right to free speech, and as the advertising industry and economy evolved, the First Amendment came to include and protect commercial speech. In addition, the United States Supreme Court has enacted special First Amendment safeguards to protect such speech.
In 1942, the case Valentine v. Chrestensen went before the Supreme Court and would pave the way for the protection of commercial language under US law. FJ Chrestensen was advertising his exhibit of a World War I submarine by handing out flyers on the streets of New York City. City Police Commissioner Lewis Valentine barred Chrestensen from advertising the exhibit, saying the flyers could only be distributed to disseminate information or organize a protest rally. Chrestensen then redesigned the flyers by removing the price of admission to the exhibition and printing a protest against Valentine’s sentence.
The case eventually ended up in the United States Supreme Court, which ruled that advertising, or commercial speech, was not protected by the First Amendment. The court cited a list of reasons for reaching this conclusion, the first being that political speech, protected by the First Amendment, is more important to a nation’s success than advertising speech. While it would be challenged several times over the next several decades, this ruling would remain in effect until the 1970s, when it was finally decided that such advertising discourse had value for consumer decision-making processes.
The case for the protection of commercial speech was further solidified in 1996, when a Rhode Island liquor store sued to overturn that state’s ban on advertising alcohol prices. 44 Liquomart, Inc. v. Rhode Island also made it to the US Supreme Court, where Justice Clarence Thomas observed: “I see no philosophical or historical basis for saying that ‘commercial discourse’ has any ‘inferior value’ than ‘non-commercial’ . speech.” Despite Thomas’ view, however, commercial speech is often viewed as less important than other forms of free speech, as it is seen by many as a strictly economic issue.
Commercial discourse is still a debated issue under US law. Due to the Supreme Court’s rather vague guardianship that one form of free speech has no more value than another form of free speech, strict guidelines on what exactly constitutes commercial speech remain unclear. As long as definitive rules are elusive, cases challenging First Amendment protection for commercial speech will continue to emerge.
Protect your devices with Threat Protection by NordVPN
