Commercial Speech: Overview

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Starting in the 1970s, the Court’s treatment of “commercial speech” underwent a transformation from total nonprotection under the First Amendment to qualified protection. The conclusion that a communication proposing a commercial transaction is a different order of speech underserving of First Amendment protection was arrived at almost casually in 1942 in Valentine v. Chrestensen .1 Footnote
316 U.S. 52 (1942) . See also Breard v. City of Alexandria, 341 U.S. 622 (1951) . The doctrine was one of the bases upon which the banning of all commercials for cigarettes from radio and television was upheld. Capital Broadcasting Co. v. Mitchell , 333 F. Supp. 582 (D.D.C. 1971) (three-judge court), aff’d per curiam, 405 U.S. 1000 (1972) . In Chrestensen , the Court upheld a city ordinance prohibiting distribution on the street of “commercial and business advertising matter,” as applied to an exhibitor of a submarine who distributed leaflets describing his submarine on one side and on the other side protesting the city’s refusal of certain docking facilities. The doctrine was in any event limited to promotion of commercial activities; the fact that expression was disseminated for profit or through commercial channels did not expose it to any greater regulation than if it were offered for free.2 Footnote
Books that are sold for profit, Smith v. California, 361 U.S. 147, 150 (1959) ; Ginzburg v. United States, 383 U.S. 463, 474–75 (1966) , advertisements dealing with political and social matters which newspapers carry for a fee, New York Times Co. v. Sullivan, 376 U.S. 254, 265–66 (1964) , motion pictures which are exhibited for an admission fee, United States v. Paramount Pictures, 334 U.S. 131, 166 (1948) ; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501–02 (1952) , were all during this period held entitled to full First Amendment protection regardless of the commercial element involved. The doctrine lasted in this form for more than twenty years.

The Court later modified this position so that commercial speech is protected “from unwarranted governmental regulation,” although its nature makes it subject to greater limitations than may be imposed on expression not solely related to the economic interests of the speaker and its audience.3 Footnote
Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 561 (1980) . The change to its earlier holdings was accomplished within a brief span of time in which the Justices haltingly but then decisively moved to a new position. Applying the doctrine in a narrow five-to-four decision, the Court sustained the application of a city’s ban on employment discrimination to bar sex-designated employment advertising in a newspaper.4 Footnote
Pittsburgh Press Co. v. Comm’n on Human Relations, 413 U.S. 376 (1973) . Suggesting that speech does not lose its constitutional protection simply because it appears in a commercial context, Justice Powell, for the Court, did find the placing of want-ads in newspapers to be “classic examples of commercial speech,” devoid of expressions of opinions with respect to issues of social policy; so the “did no more than propose a commercial transaction.” But the Justice also noted that employment discrimination, which was facilitated by the advertisements, was itself illegal.5 Footnote
413 U.S. at 385, 389 . The Court continues to hold that government may ban commercial speech related to illegal activity. Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 563–64 (1980) .

Next, the Court overturned a conviction under a state statute that made it illegal, by sale or circulation of any publication, to encourage or prompt the procuring of an abortion. The Court held the statute unconstitutional as applied to an editor of a weekly newspaper who published an advertisement announcing the availability of legal and safe abortions in another state and detailing the assistance that would be provided state residents in obtaining abortions in the other state.6 Footnote
Bigelow v. Virginia, 421 U.S. 809 (1975) . The Court discerned that the advertisements conveyed information of other than a purely commercial nature, that they related to services that were legal in the other jurisdiction, and that the state could not prevent its residents from obtaining abortions in the other state or punish them for doing so.

Then, the Court swept all these distinctions away as it voided a statute that declared it unprofessional conduct for a licensed pharmacist to advertise the prices of prescription drugs.7 Footnote
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) . Justice Rehnquist dissented. Id. at 781 . In a suit brought by consumers to protect their right to receive information, the Court held that speech that does no more than propose a commercial transaction is nonetheless of such social value as to be entitled to protection. Consumers’ interests in receiving factual information about prices may even be of greater value than political debate, but in any event price competition and access to information about it is in the public interest. State interests asserted in support of the ban—protection of professionalism and the quality of prescription goods—were found either badly served or not served by the statute.8 Footnote
425 U.S. at 763–64 (consumers’ interests), 764-65 (social interest), 766-70 (justifications for the ban).

Turning from the interests of consumers to receive information to the asserted right of advertisers to communicate, the Court voided several restrictions. The Court voided a municipal ordinance that barred the display of “For sale” and “Sold” signs on residential lawns, purportedly so as to limit “white flight” resulting from a “fear psychology” that developed among white residents following sale of homes to nonwhites. The right of owners to communicate their intention to sell a commodity and the right of potential buyers to receive the message was protected, the Court determined; the community interest could have been achieved by less restrictive means and in any event may not be achieved by restricting the free flow of truthful information.9 Footnote
Linmark Assocs. v. Township of Willingboro, 431 U.S. 85 (1977) . Similarly, deciding a question it had reserved in the Virginia Pharmacy case, the Court held that a state could not forbid lawyers from advertising the prices they charged for the performance of routine legal services.10 Footnote
Bates v. State Bar of Arizona, 433 U.S. 350 (1977) . Chief Justice Burger and Justices Powell, Stewart, and Rehnquist dissented. Id. at 386, 389, 404 . None of the proffered state justifications for the ban was deemed sufficient to overcome the private and societal interest in the free exchange of this form of speech.11 Footnote
433 U.S. at 368–79 . See also In re R.M.J., 455 U.S. 191 (1982) (invalidating sanctions imposed on attorney for deviating in some respects from rigid prescriptions of advertising style and for engaging in some proscribed advertising practices, because the state could show neither that his advertising was misleading nor that any substantial governmental interest was served by the restraints). Nor may a state categorically prohibit attorney advertising through mailings that target persons known to face particular legal problems,12 Footnote
Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988) . Shapero was distinguished in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) , a 5-4 decision upholding a prohibition on targeted direct-mail solicitations to victims and their relatives for a 30-day period following an accident or disaster. “ Shapero dealt with a broad ban on all direct mail solicitations” ( id. at 629 ), the Court explained, and was not supported, as Florida’s more limited ban was, by findings describing the harms to be prevented by the ban. Dissenting Justice Kennedy disagreed that there was a valid distinction, pointing out that in Shapero the Court had said that “the mode of communication [mailings versus potentially more abusive in-person solicitation] makes all the difference,” and that mailings were at issue in both Shapero and Florida Bar . 515 U.S. at 637 (quoting Shapero , 486 U.S. at 475 ). or prohibit an attorney from holding himself out as a certified civil trial specialist,13 Footnote
Peel v. Illinois Attorney Disciplinary Comm’n, 496 U.S. 91 (1990) . or prohibit a certified public accountant from holding herself out as a certified financial planner.14 Footnote
Ibanez v. Florida Bd. of Accountancy, 512 U.S. 136 (1994) (also ruling that Accountancy Board could not reprimand the CPA, who was also a licensed attorney, for truthfully listing her CPA credentials in advertising for her law practice).

More recently, the Court has distinguished between laws that regulate the conduct of sellers versus those that regulate a seller’s speech. In Expressions Hair Design v. Schneiderman , the Court held that a New York State statute that prohibits businesses from displaying a cash price alongside a surcharge for credit card purchases burdens speech.15 Footnote
581 U.S. ___, No. 15-1391, slip op. (2017) . Relying on Supreme Court precedent suggesting that “price regulation alone regulates conduct, not speech,” the lower court held that the statute was constitutional.16 Footnote
Id. at 5 . The Supreme Court disagreed, stating “[w]hat the law does regulate is how sellers may communicate their prices,” and “[i]n regulating the communication of prices rather than prices themselves, [the statute] regulates speech.” 17 Footnote
Id. at 9–10 . The Court, however, remanded the case to the lower court to determine in the first instance whether the law survives First Amendment scrutiny.18 Footnote
Id. at 1 .

Moreover, a statute prohibiting the practice of optometry under a trade name was sustained because there was “a significant possibility” that the public might be misled through deceptive use of the same or similar trade names.24 Footnote
Friedman v. Rogers, 440 U.S. 1 (1979) . But a state regulatory commission prohibition of utility advertisements “intended to stimulate the purchase of utility services” was held unjustified by the asserted interests in energy consumption and avoidance of subsidization of additional energy costs by all consumers.25 Footnote
Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557 (1980) . See also Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530 (1980) (voiding a ban on utility’s inclusion in monthly bills of inserts discussing controversial issues of public policy). However, the linking of a product to matters of public debate does not thereby entitle an ad to the increased protection afforded noncommercial speech. Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) .

Although commercial speech is entitled to First Amendment protection, the Court has clearly held that it is different from other forms of expression; it has remarked on the commonsense differences between speech that does no more than propose a commercial transaction and other varieties.26 Footnote
Commercial speech is viewed by the Court as usually hardier than other speech; because advertising is the sine qua non of commercial profits, it is less likely to be chilled by regulation. Thus, the difference inheres in both the nature of the speech and the nature of the governmental interest. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771–72 n.24 (1976) ; Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455–56 (1978) . It is, of course, important to develop distinctions between commercial speech and other speech for purposes of determining when broader regulation is permissible. The Court’s definitional statements have been general, referring to commercial speech as that “proposing a commercial transaction,” Ohralik v. Ohio State Bar Ass’n , supra, or as “expression related solely to the economic interests of the speaker and its audience.” Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 561 (1980) . It has simply viewed as noncommercial the advertising of views on public policy that would inhere to the economic benefit of the speaker. Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530 (1980) . So too, the Court has refused to treat as commercial speech charitable solicitation undertaken by professional fundraisers, characterizing the commercial component as “inextricably intertwined with otherwise fully protected speech.” Riley v. National Fed'n of the Blind, 487 U.S. 781, 796 (1988) . By contrast, a mixing of home economics information with a sales pitch at a “Tupperware” party did not remove the transaction from commercial speech. Board of Trustees v. Fox, 492 U.S. 469 (1989) . In Nike, Inc. v. Kasky , 45 P.3d 243 (Cal. 2002) , cert. dismissed, 539 U.S. 654 (2003) , Nike was sued for unfair and deceptive practices for allegedly false statements it made concerning the working conditions under which its products were manufactured. The California Supreme Court ruled that the suit could proceed, and the Supreme Court granted certiorari, but then dismissed it as improvidently granted, with a concurring and two dissenting opinions. The issue left undecided was whether Nike’s statements, though they concerned a matter of public debate and appeared in press releases and letters rather than in advertisements for its products, should be deemed “'commercial speech’ because they might affect consumers’ opinions about the business as a good corporate citizen and thereby affect their purchasing decisions.” Id. at 657 (Stevens, J., concurring). Nike subsequently settled the suit. The Court has developed the four-pronged Central Hudson test to measure the validity of restraints upon commercial expression.27 Footnote
Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557 (1980) . In one case, the Court referred to the test as having three prongs, referring to its second, third, and fourth prongs, as, respectively, its first, second, and third. The Court in that case did, however, apply Central Hudson ’s first prong as well. Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995) .

Under the first prong of the test, certain commercial speech is not entitled to protection; the informational function of advertising is the First Amendment concern and if an advertisement does not accurately inform the public about lawful activity, it can be suppressed.28 Footnote
Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 563, 564 (1980) . Within this category fall the cases involving the possibility of deception through such devices as use of trade names, Friedman v. Rogers, 440 U.S. 1 (1979) , and solicitation of business by lawyers, Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978) , as well as the proposal of an unlawful transaction, Pittsburgh Press Co. v. Commission on Human Relations, 413 U.S. 376 (1973) .

Second, if the speech is protected, the interest of the government in regulating and limiting it must be assessed. The state must assert a substantial interest to be achieved by restrictions on commercial speech.29 Footnote
Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 564, 568–69 (1980) . The Court deemed the state’s interests to be clear and substantial. The pattern here is similar to much due process and equal protection litigation as well as expression and religion cases in which the Court accepts the proffered interests as legitimate and worthy. See also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987) (governmental interest in protecting USOC’s exclusive use of word “Olympic” is substantial); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (government’s interest in curbing strength wars among brewers is substantial, but interest in facilitating state regulation of alcohol is not substantial). Contrast United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) , finding a substantial federal interest in facilitating state restrictions on lotteries. “Unlike the situation in Edge Broadcasting ,” the Coors Court explained, “the policies of some states do not prevent neighboring states from pursuing their own alcohol-related policies within their respective borders.” 514 U.S. at 486 . However, in Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) , the Court deemed insubstantial a governmental interest in protecting postal patrons from offensive but not obscene materials. For deferential treatment of the governmental interest, see Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986) (Puerto Rico’s “substantial” interest in discouraging casino gambling by residents justifies ban on ads aimed at residents even though residents may legally engage in casino gambling, and even though ads aimed at tourists are permitted).

Third, the restriction cannot be sustained if it provides only ineffective or remote support for the asserted purpose.30 Footnote
447 U.S. at 569 . The ban here was found to directly advance one of the proffered interests. Contrast this holding with Bates v. State Bar of Arizona, 433 U.S. 350 (1977) ; Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) ; Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) ; Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (prohibition on display of alcohol content on beer labels does not directly and materially advance government’s interest in curbing strength wars among brewers, given the inconsistencies and “overall irrationality” of the regulatory scheme); and Edenfield v. Fane, 507 U.S. 761 (1993) (Florida’s ban on in-person solicitation by certified public accountants does not directly advance its legitimate interests in protecting consumers from fraud, protecting consumer privacy, and maintaining professional independence from clients), where the restraints were deemed indirect or ineffectual. Instead, the regulation must “directly advance” the governmental interest. The Court resolves this issue with reference to aggregate effects, and does not limit its consideration to effects on the challenging litigant.31 Footnote
United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993) ( “this question cannot be answered by limiting the inquiry to whether the governmental interest is directly advanced as applied to a single person or entity” ).

The “reasonable fit” standard has some teeth, the Court made clear in City of Cincinnati v. Discovery Network, Inc. ,35 Footnote
507 U.S. 410 (1993) . See also Edenfield v. Fane, 507 U.S. 761 (1993) , decided the same Term, relying on the “directly advance” third prong of Central Hudson to strike down a ban on in-person solicitation by certified public accountants. striking down a city’s prohibition on distribution of “commercial handbills” through freestanding newsracks located on city property. The city’s aesthetic interest in reducing visual clutter was furthered by reducing the total number of newsracks, but the distinction between prohibited “commercial” publications and permitted “newspapers” bore “no relationship whatsoever” to this legitimate interest.36 Footnote
507 U.S. at 424 . The city could not, the Court ruled, single out commercial speech to bear the full onus when “all newsracks, regardless of whether they contain commercial or noncommercial publications, are equally at fault.” 37 Footnote
507 U.S. at 426 . The Court also noted the “minute” effect of removing 62 “commercial” newsracks while 1,500 to 2,000 other newsracks remained in place. Id. at 418 . By contrast, the Court upheld a federal law that prohibited broadcast of lottery advertisements by a broadcaster in a state that prohibits lotteries, while allowing broadcast of such ads by stations in states that sponsor lotteries. There was a “reasonable fit” between the restriction and the asserted federal interest in supporting state anti-gambling policies without unduly interfering with policies of neighboring states that promote lotteries.38 Footnote
United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) . The prohibition “directly served” the congressional interest, and could be applied to a broadcaster whose principal audience was in an adjoining lottery state, and who sought to run ads for that state’s lottery.39 Footnote
507 U.S. at 428 .

In 1999, the Court struck down a provision of the same statute as applied to advertisements for private casino gambling that are broadcast by radio and television stations located in a state where such gambling is legal.40 Footnote
Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173 (1999) . The Court emphasized the interrelatedness of the four parts of the Central Hudson test: “Each [part] raises a relevant question that may not be dispositive to the First Amendment inquiry, but the answer to which may inform a judgment concerning the other three.” 41 Footnote
527 U.S. at 184 . For example, although the government has a substantial interest in reducing the social costs of gambling, the fact that the Congress has simultaneously encouraged gambling, because of its economic benefits, makes it more difficult for the government to demonstrate that its restriction on commercial speech materially advances its asserted interest and constitutes a reasonable “fit.” 42 Footnote
527 U.S. at 186–87 . In this case, “[t]he operation of [ 18 U.S.C.] § 1304 and its attendant regulatory regime is so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it.” 43 Footnote
527 U.S. at 190 . Moreoever, “the regulation distinguishes among the indistinct, permitting a variety of speech that poses the same risks the Government purports to fear, while banning messages unlikely to cause any harm at all.” 44 Footnote
527 U.S. at 195 .

In Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico , the Court asserted that “the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling.” 45 Footnote
478 U.S. 328, 345–46 (1986) . For discussion of the case, see P. Kurland , Posadas de Puerto Rico v. Tourism Company: “’Twas Strange, ‘Twas Passing Strange; ‘Twas Pitiful, ‘Twas Wondrous Pitiful,” 1986 Sup. Ct. Rev. 1 . Subsequently, however, the Court eschewed reliance on Posadas ,46 Footnote
In Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (invalidating a federal ban on revealing alcohol content on malt beverage labels), the Court rejected reliance on Posadas , pointing out that the statement in Posadas had been made only after a determination that the advertising could be upheld under Central Hudson . The Court found it unnecessary to consider the greater-includes-lesser argument in United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993) , upholding through application of Central Hudson principles a ban on broadcast of lottery ads. and it seems doubtful that the Court would again embrace the broad principle that government may ban all advertising of an activity that it permits but has power to prohibit. Indeed, the Court’s very holding in 44 Liquormart, Inc. v. Rhode Island ,47 Footnote
517 U.S. 484 (1996) . striking down the state’s ban on advertisements that provide truthful information about liquor prices, is inconsistent with the general proposition. A Court plurality in 44 Liquormart squarely rejected Posadas , calling it “erroneous,” declining to give force to its “highly deferential approach,” and proclaiming that a state “does not have the broad discretion to suppress truthful, nonmisleading information for paternalistic purposes that the Posadas majority was willing to tolerate.” 48 Footnote
517 U.S. at 510 (opinion of Stevens, joined by Justices Kennedy, Thomas, and Ginsburg). Stevens' opinion also dismissed the Posadas “greater-includes-the-lesser argument” as “inconsistent with both logic and well-settled doctrine,” pointing out that the First Amendment “presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct.” Id. at 511–512 . Four other Justices concluded that Posadas was inconsistent with the “closer look” that the Court has since required in applying the principles of Central Hudson .49 Footnote
517 U.S. at 531–32 (concurring opinion of O’Connor, joined by Chief Justice Rehnquist and by Justices Souter and Breyer).

The “different degree of protection” accorded commercial speech has a number of consequences as regards other First Amendment doctrine. For instance, somewhat broader times, places, and manner regulations are to be tolerated,50 Footnote
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 (1976) ; Bates v. State Bar of Arizona, 433 U.S. 350, 384 (1977) . But, in Linmark Associates v. Township of Willingboro, 431 U.S. 85, 93–94 (1977) , the Court refused to accept a times, places, and manner defense of an ordinance prohibiting “For Sale” signs on residential lawns. First, ample alternative channels of communication were not available, and second, the ban was seen rather as a content limitation. and the rule against prior restraints may be inapplicable.51 Footnote
Central Hudson Gas & Elec. Co. v. PSC, 447 U.S. 557, 571 n.13 (1980) , citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 772 n.24 (1976) . See “The Doctrine of Prior Restraint,” supra. Further, disseminators of commercial speech are not protected by the overbreadth doctrine.52 Footnote
Bates v. State Bar of Arizona, 433 U.S. 350, 379–81 (1977) ; Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 565 n.8 (1980) . On the other hand, there are circumstances in which the nature of the restriction placed on commercial speech may alter the First Amendment analysis, and even result in the application of a heightened level of scrutiny.

For instance, in Sorrell v. IMS Health, Inc. ,53 Footnote
564 U.S. 552 (2011) . the Court struck down state restrictions on pharmacies and “data-miners” selling or leasing information on the prescribing behavior of doctors for marketing purposes and related restrictions limiting the use of that information by pharmaceutical companies.54 Footnote
“Detailers,” marketing specialists employed by pharmaceutical manufacturers, used the reports to refine their marketing tactics and increase sales to doctors. These prohibitions, however, were subject to a number of exceptions, including provisions allowing such prescriber-identifying information to be used for health care research. Because the restrictions only applied to the use of this information for marketing and because they principally applied to pharmaceutical manufacturers of non-generic drugs, the Court found that these restrictions were content-based and speaker-based limits and thus subject to heightened scrutiny.55 Footnote
Although the state put forward a variety of proposed governmental interests to justify the regulations, the Court found these interests (expectation of physician privacy, discouraging harassment of physicians, and protecting the integrity of the doctor-physician relationship) were ill-served by the content-based restrictions. Sorrell , 564 U.S. at 572–77 . The Court also rejected the argument that the regulations were an appropriate way to reduce health care costs, noting that “[t]he State seeks to achieve its policy objectives through the indirect means of restraining certain speech by certain speakers—that is, by diminishing detailers’ ability to influence prescription decisions. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the 'fear that people would make bad decisions if given truthful information' cannot justify content-based burdens on speech.” Id. at 577 .

Different degrees of protection may also be discerned among different categories of commercial speech. The first prong of the Central Hudson test means that false, deceptive, or misleading advertisements need not be permitted; government may require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent deception.56 Footnote
Bates v. State Bar of Arizona, 433 U.S. 350, 383–84 (1977) ; Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) . Requirements that advertisers disclose more information than they otherwise choose to are upheld “as long as [they] are reasonably related to the State’s interest in preventing deception of consumers,” the Court explaining that “[t]he right of a commercial speaker not to divulge accurate information regarding his services is not . . . a fundamental right” requiring strict scrutiny of the disclosure requirement. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 & n.14 (1985) (upholding requirement that attorney’s contingent fees ad mention that unsuccessful plaintiffs might still be liable for court costs). But even truthful, non-misleading commercial speech may be regulated, and the validity of such regulation is tested by application of the remaining prongs of the Central Hudson test. The test itself does not make further distinctions based on the content of the commercial message or the nature of the governmental interest (that interest need only be “substantial” ). Recent decisions suggest, however, that further distinctions may exist. Measures aimed at preserving “a fair bargaining process” between consumer and advertiser57 Footnote
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996) . may be more likely to pass the test58 Footnote
See, e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 465 (1978) (upholding ban on in-person solicitation by attorneys due in part to the “potential for overreaching” when a trained advocate “solicits an unsophisticated, injured, or distressed lay person” ). than are regulations designed to implement general health, safety, or moral concerns.59 Footnote
Compare United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) (upholding federal law supporting state interest in protecting citizens from lottery information) and Florida Bar v. Went For It, Inc., 515 U.S. 618, 631 (1995) (upholding a 30-day ban on targeted, direct-mail solicitation of accident victims by attorneys, not because of any presumed susceptibility to overreaching, but because the ban “forestall[s] the outrage and irritation with the . . . legal profession that the [banned] solicitation . . . has engendered” ) with Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (striking down federal statute prohibiting display of alcohol content on beer labels) and 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (striking down state law prohibiting display of retail prices in ads for alcoholic beverages). As the governmental interest becomes further removed from protecting a fair bargaining process, it may become more difficult to establish the absence of less burdensome regulatory alternatives and the presence of a “reasonable fit” between the commercial speech restriction and the governmental interest.60 Footnote
“[S]everal Members of the Court have expressed doubts about the Central Hudson analysis and whether it should apply in particular cases.” Thompson v. Western States Medical Center, 535 U.S. 357, 367 (2002) . Justice Stevens has criticized the Central Hudson test because it seemingly allows regulation of any speech propounded in a commercial context regardless of the content of that speech. “[A]ny description of commercial speech that is intended to identify the category of speech entitled to less First Amendment protection should relate to the reasons for permitting broader regulation: namely, commercial speech’s potential to mislead.” Rubin v. Coors Brewing Co., 514 U.S. 476, 494 (1995) (concurring opinion). The Justice repeated these views in 1996: “when a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands.” 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996) (a portion of the opinion joined by Justices Kennedy and Ginsburg). Justice Thomas, similarly, wrote that, in cases “in which the government’s asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace, the Central Hudson test should not be applied because such an interest’ is per se illegitimate. . . .” Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173, 197 (1999) (Thomas, J., concurring) (internal quotation marks omitted). Other decisions in which the Court majority acknowledged that some Justices would grant commercial speech greater protection than it has under the Central Hudson test include United States v. United Foods, Inc., 533 U.S. 405, 409–410 (2001) (mandated assessments, used for advertising, on handlers of fresh mushrooms struck down as compelled speech, rather than under Central Hudson ), and Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554 (2001) (various state restrictions on tobacco advertising struck down under Central Hudson as overly burdensome).

Footnotes 1 316 U.S. 52 (1942) . See also Breard v. City of Alexandria, 341 U.S. 622 (1951) . The doctrine was one of the bases upon which the banning of all commercials for cigarettes from radio and television was upheld. Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (D.D.C. 1971) (three-judge court), aff’d per curiam, 405 U.S. 1000 (1972) . 2 Books that are sold for profit, Smith v. California, 361 U.S. 147, 150 (1959) ; Ginzburg v. United States, 383 U.S. 463, 474–75 (1966) , advertisements dealing with political and social matters which newspapers carry for a fee, New York Times Co. v. Sullivan, 376 U.S. 254, 265–66 (1964) , motion pictures which are exhibited for an admission fee, United States v. Paramount Pictures, 334 U.S. 131, 166 (1948) ; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501–02 (1952) , were all during this period held entitled to full First Amendment protection regardless of the commercial element involved. 3 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 561 (1980) . 4 Pittsburgh Press Co. v. Comm’n on Human Relations, 413 U.S. 376 (1973) . 5 413 U.S. at 385, 389 . The Court continues to hold that government may ban commercial speech related to illegal activity. Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 563–64 (1980) . 6 Bigelow v. Virginia, 421 U.S. 809 (1975) . 7 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) . Justice Rehnquist dissented. Id. at 781 . 8 425 U.S. at 763–64 (consumers’ interests), 764-65 (social interest), 766-70 (justifications for the ban). 9 Linmark Assocs. v. Township of Willingboro, 431 U.S. 85 (1977) . 10 Bates v. State Bar of Arizona, 433 U.S. 350 (1977) . Chief Justice Burger and Justices Powell, Stewart, and Rehnquist dissented. Id. at 386, 389, 404 . 11 433 U.S. at 368–79 . See also In re R.M.J., 455 U.S. 191 (1982) (invalidating sanctions imposed on attorney for deviating in some respects from rigid prescriptions of advertising style and for engaging in some proscribed advertising practices, because the state could show neither that his advertising was misleading nor that any substantial governmental interest was served by the restraints). 12 Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988) . Shapero was distinguished in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) , a 5-4 decision upholding a prohibition on targeted direct-mail solicitations to victims and their relatives for a 30-day period following an accident or disaster. “ Shapero dealt with a broad ban on all direct mail solicitations” ( id. at 629 ), the Court explained, and was not supported, as Florida’s more limited ban was, by findings describing the harms to be prevented by the ban. Dissenting Justice Kennedy disagreed that there was a valid distinction, pointing out that in Shapero the Court had said that “the mode of communication [mailings versus potentially more abusive in-person solicitation] makes all the difference,” and that mailings were at issue in both Shapero and Florida Bar . 515 U.S. at 637 (quoting Shapero , 486 U.S. at 475 ). 13 Peel v. Illinois Attorney Disciplinary Comm’n, 496 U.S. 91 (1990) . 14 Ibanez v. Florida Bd. of Accountancy, 512 U.S. 136 (1994) (also ruling that Accountancy Board could not reprimand the CPA, who was also a licensed attorney, for truthfully listing her CPA credentials in advertising for her law practice). 15 581 U.S. ___, No. 15-1391, slip op. (2017) . 16 Id. at 5 . 17 Id. at 9–10 . 18 Id. at 1 . 19 Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978) . But compare In re Primus , 426 U.S. 412 (1978) . The distinction between in-person and other attorney advertising was continued in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) ( “print advertising . . . in most cases . . . will lack the coercive force of the personal presence of the trained advocate” ). 20 Tennessee Secondary School Athletic Ass'n v. Brentwood Academy, 551 U.S. 291, 298 (2007) . 21 Edenfield v. Fane, 507 U.S. 761, 775 (1993) . 22 Edenfield v. Fane , 507 U.S. at 774 , quoting In re R.M.J. , 455 U.S. at 203 , and quoted in Tennessee Secondary School Athletic Ass'n v. Brentwood Academy, 551 U.S. 291, 298 (2007) . 23 507 U.S. at 777 . 24 Friedman v. Rogers, 440 U.S. 1 (1979) . 25 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557 (1980) . See also Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530 (1980) (voiding a ban on utility’s inclusion in monthly bills of inserts discussing controversial issues of public policy). However, the linking of a product to matters of public debate does not thereby entitle an ad to the increased protection afforded noncommercial speech. Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) . 26 Commercial speech is viewed by the Court as usually hardier than other speech; because advertising is the sine qua non of commercial profits, it is less likely to be chilled by regulation. Thus, the difference inheres in both the nature of the speech and the nature of the governmental interest. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771–72 n.24 (1976) ; Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455–56 (1978) . It is, of course, important to develop distinctions between commercial speech and other speech for purposes of determining when broader regulation is permissible. The Court’s definitional statements have been general, referring to commercial speech as that “proposing a commercial transaction,” Ohralik v. Ohio State Bar Ass’n , supra, or as “expression related solely to the economic interests of the speaker and its audience.” Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 561 (1980) . It has simply viewed as noncommercial the advertising of views on public policy that would inhere to the economic benefit of the speaker. Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530 (1980) . So too, the Court has refused to treat as commercial speech charitable solicitation undertaken by professional fundraisers, characterizing the commercial component as “inextricably intertwined with otherwise fully protected speech.” Riley v. National Fed'n of the Blind, 487 U.S. 781, 796 (1988) . By contrast, a mixing of home economics information with a sales pitch at a “Tupperware” party did not remove the transaction from commercial speech. Board of Trustees v. Fox, 492 U.S. 469 (1989) . In Nike, Inc. v. Kasky , 45 P.3d 243 (Cal. 2002) , cert. dismissed, 539 U.S. 654 (2003) , Nike was sued for unfair and deceptive practices for allegedly false statements it made concerning the working conditions under which its products were manufactured. The California Supreme Court ruled that the suit could proceed, and the Supreme Court granted certiorari, but then dismissed it as improvidently granted, with a concurring and two dissenting opinions. The issue left undecided was whether Nike’s statements, though they concerned a matter of public debate and appeared in press releases and letters rather than in advertisements for its products, should be deemed “'commercial speech’ because they might affect consumers’ opinions about the business as a good corporate citizen and thereby affect their purchasing decisions.” Id. at 657 (Stevens, J., concurring). Nike subsequently settled the suit. 27 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557 (1980) . In one case, the Court referred to the test as having three prongs, referring to its second, third, and fourth prongs, as, respectively, its first, second, and third. The Court in that case did, however, apply Central Hudson ’s first prong as well. Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995) . 28 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 563, 564 (1980) . Within this category fall the cases involving the possibility of deception through such devices as use of trade names, Friedman v. Rogers, 440 U.S. 1 (1979) , and solicitation of business by lawyers, Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978) , as well as the proposal of an unlawful transaction, Pittsburgh Press Co. v. Commission on Human Relations, 413 U.S. 376 (1973) . 29 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 564, 568–69 (1980) . The Court deemed the state’s interests to be clear and substantial. The pattern here is similar to much due process and equal protection litigation as well as expression and religion cases in which the Court accepts the proffered interests as legitimate and worthy. See also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987) (governmental interest in protecting USOC’s exclusive use of word “Olympic” is substantial); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (government’s interest in curbing strength wars among brewers is substantial, but interest in facilitating state regulation of alcohol is not substantial). Contrast United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) , finding a substantial federal interest in facilitating state restrictions on lotteries. “Unlike the situation in Edge Broadcasting ,” the Coors Court explained, “the policies of some states do not prevent neighboring states from pursuing their own alcohol-related policies within their respective borders.” 514 U.S. at 486 . However, in Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) , the Court deemed insubstantial a governmental interest in protecting postal patrons from offensive but not obscene materials. For deferential treatment of the governmental interest, see Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986) (Puerto Rico’s “substantial” interest in discouraging casino gambling by residents justifies ban on ads aimed at residents even though residents may legally engage in casino gambling, and even though ads aimed at tourists are permitted). 30 447 U.S. at 569 . The ban here was found to directly advance one of the proffered interests. Contrast this holding with Bates v. State Bar of Arizona, 433 U.S. 350 (1977) ; Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) ; Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) ; Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (prohibition on display of alcohol content on beer labels does not directly and materially advance government’s interest in curbing strength wars among brewers, given the inconsistencies and “overall irrationality” of the regulatory scheme); and Edenfield v. Fane, 507 U.S. 761 (1993) (Florida’s ban on in-person solicitation by certified public accountants does not directly advance its legitimate interests in protecting consumers from fraud, protecting consumer privacy, and maintaining professional independence from clients), where the restraints were deemed indirect or ineffectual. 31 United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993) ( “this question cannot be answered by limiting the inquiry to whether the governmental interest is directly advanced as applied to a single person or entity” ). 32 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 565, 569–71 (1980) . This test is, of course, the “least restrictive means” standard. Shelton v. Tucker, 364 U.S. 479, 488 (1960) . In Central Hudson , the Court found the ban more extensive than was necessary to effectuate the governmental purpose. See also Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) , where the Court held that the governmental interest in not interfering with parental efforts at controlling children’s access to birth control information could not justify a ban on commercial mailings about birth control products; “[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.” Id. at 74 . See also Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (there are less intrusive alternatives—e.g., direct limitations on alcohol content of beer—to prohibition on display of alcohol content on beer label). Note, however, that, in San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 539 (1987) , the Court applied the test in a manner deferential to Congress: “the restrictions [at issue] are not broader than Congress reasonably could have determined to be necessary to further these interests.” 33 Board of Trustees v. Fox, 492 U.S. 469, 480 (1989) . In a 1993 opinion the Court elaborated on the difference between reasonable fit and least restrictive alternative. “A regulation need not be ‘absolutely the least severe that will achieve the desired end,’ but if there are numerous and obvious less-burdensome alternatives to the restriction . . . , that is certainly a relevant consideration in determining whether the ‘fit’ between ends and means is reasonable.” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n.13 (1993) . But see Thompson v. Western States Medical Center, 535 U.S. 357, 368 (2002) , in which the Court quoted the fourth prong of the Central Hudson test without mentioning its reformulation by Fox , and added, again without reference to Fox , “In previous cases addressing this final prong of the Central Hudson test, we have made clear that if the government could achieve its interests in a manner that does not restrict speech, or that restricts less speech, the government must do so.” Id. at 371 . 34 Florida Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995) . 35 507 U.S. 410 (1993) . See also Edenfield v. Fane, 507 U.S. 761 (1993) , decided the same Term, relying on the “directly advance” third prong of Central Hudson to strike down a ban on in-person solicitation by certified public accountants. 36 507 U.S. at 424 . 37 507 U.S. at 426 . The Court also noted the “minute” effect of removing 62 “commercial” newsracks while 1,500 to 2,000 other newsracks remained in place. Id. at 418 . 38 United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) . 39 507 U.S. at 428 . 40 Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173 (1999) . 41 527 U.S. at 184 . 42 527 U.S. at 186–87 . 43 527 U.S. at 190 . 44 527 U.S. at 195 . 45 478 U.S. 328, 345–46 (1986) . For discussion of the case, see P. Kurland , Posadas de Puerto Rico v. Tourism Company: “’Twas Strange, ‘Twas Passing Strange; ‘Twas Pitiful, ‘Twas Wondrous Pitiful,” 1986 Sup. Ct. Rev. 1 . 46 In Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (invalidating a federal ban on revealing alcohol content on malt beverage labels), the Court rejected reliance on Posadas , pointing out that the statement in Posadas had been made only after a determination that the advertising could be upheld under Central Hudson . The Court found it unnecessary to consider the greater-includes-lesser argument in United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993) , upholding through application of Central Hudson principles a ban on broadcast of lottery ads. 47 517 U.S. 484 (1996) . 48 517 U.S. at 510 (opinion of Stevens, joined by Justices Kennedy, Thomas, and Ginsburg). Stevens' opinion also dismissed the Posadas “greater-includes-the-lesser argument” as “inconsistent with both logic and well-settled doctrine,” pointing out that the First Amendment “presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct.” Id. at 511–512 . 49 517 U.S. at 531–32 (concurring opinion of O’Connor, joined by Chief Justice Rehnquist and by Justices Souter and Breyer). 50 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 (1976) ; Bates v. State Bar of Arizona, 433 U.S. 350, 384 (1977) . But, in Linmark Associates v. Township of Willingboro, 431 U.S. 85, 93–94 (1977) , the Court refused to accept a times, places, and manner defense of an ordinance prohibiting “For Sale” signs on residential lawns. First, ample alternative channels of communication were not available, and second, the ban was seen rather as a content limitation. 51 Central Hudson Gas & Elec. Co. v. PSC, 447 U.S. 557, 571 n.13 (1980) , citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 772 n.24 (1976) . See “The Doctrine of Prior Restraint,” supra. 52 Bates v. State Bar of Arizona, 433 U.S. 350, 379–81 (1977) ; Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 565 n.8 (1980) . 53 564 U.S. 552 (2011) . 54 “Detailers,” marketing specialists employed by pharmaceutical manufacturers, used the reports to refine their marketing tactics and increase sales to doctors. 55 Although the state put forward a variety of proposed governmental interests to justify the regulations, the Court found these interests (expectation of physician privacy, discouraging harassment of physicians, and protecting the integrity of the doctor-physician relationship) were ill-served by the content-based restrictions. Sorrell , 564 U.S. at 572–77 . The Court also rejected the argument that the regulations were an appropriate way to reduce health care costs, noting that “[t]he State seeks to achieve its policy objectives through the indirect means of restraining certain speech by certain speakers—that is, by diminishing detailers’ ability to influence prescription decisions. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the 'fear that people would make bad decisions if given truthful information' cannot justify content-based burdens on speech.” Id. at 577 . 56 Bates v. State Bar of Arizona, 433 U.S. 350, 383–84 (1977) ; Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) . Requirements that advertisers disclose more information than they otherwise choose to are upheld “as long as [they] are reasonably related to the State’s interest in preventing deception of consumers,” the Court explaining that “[t]he right of a commercial speaker not to divulge accurate information regarding his services is not . . . a fundamental right” requiring strict scrutiny of the disclosure requirement. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 & n.14 (1985) (upholding requirement that attorney’s contingent fees ad mention that unsuccessful plaintiffs might still be liable for court costs). 57 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996) . 58 See, e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 465 (1978) (upholding ban on in-person solicitation by attorneys due in part to the “potential for overreaching” when a trained advocate “solicits an unsophisticated, injured, or distressed lay person” ). 59 Compare United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) (upholding federal law supporting state interest in protecting citizens from lottery information) and Florida Bar v. Went For It, Inc., 515 U.S. 618, 631 (1995) (upholding a 30-day ban on targeted, direct-mail solicitation of accident victims by attorneys, not because of any presumed susceptibility to overreaching, but because the ban “forestall[s] the outrage and irritation with the . . . legal profession that the [banned] solicitation . . . has engendered” ) with Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (striking down federal statute prohibiting display of alcohol content on beer labels) and 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (striking down state law prohibiting display of retail prices in ads for alcoholic beverages). 60 “[S]everal Members of the Court have expressed doubts about the Central Hudson analysis and whether it should apply in particular cases.” Thompson v. Western States Medical Center, 535 U.S. 357, 367 (2002) . Justice Stevens has criticized the Central Hudson test because it seemingly allows regulation of any speech propounded in a commercial context regardless of the content of that speech. “[A]ny description of commercial speech that is intended to identify the category of speech entitled to less First Amendment protection should relate to the reasons for permitting broader regulation: namely, commercial speech’s potential to mislead.” Rubin v. Coors Brewing Co., 514 U.S. 476, 494 (1995) (concurring opinion). The Justice repeated these views in 1996: “when a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands.” 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996) (a portion of the opinion joined by Justices Kennedy and Ginsburg). Justice Thomas, similarly, wrote that, in cases “in which the government’s asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace, the Central Hudson test should not be applied because such an interest’ is per se illegitimate. . . .” Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173, 197 (1999) (Thomas, J., concurring) (internal quotation marks omitted). Other decisions in which the Court majority acknowledged that some Justices would grant commercial speech greater protection than it has under the Central Hudson test include United States v. United Foods, Inc., 533 U.S. 405, 409–410 (2001) (mandated assessments, used for advertising, on handlers of fresh mushrooms struck down as compelled speech, rather than under Central Hudson ), and Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554 (2001) (various state restrictions on tobacco advertising struck down under Central Hudson as overly burdensome).

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