Commercial speech and core speech are fundamentally different, and the basis for their current First Amendment protections reflects this understanding. The purpose for protecting each type of speech is unique, and the ability of the government to compel or restrict such speech differs. Two distinct analytical frameworks and two different tiers of protection have emerged.
The U.S. Supreme Court has afforded protection against unwarranted restriction of commercial speech by applying intermediate scrutiny under the test that it established in Central Hudson Gas & Electric Corp. v. Public Service Commission. On the other hand, the Court has subjected regulations of core speech to strict scrutiny. However, in 2011, the Court conflated the two analyses and relied on core-speech precedent when it analyzed a commercial-speech issue in Sorrell v. IMS Health Inc.
This Article argues that the Court must uphold the distinction between commercial speech and core speech and that it must reject all future opportunities to overhaul the commercial-speech doctrine. The Court should continue using the Central Hudson test to apply intermediate scrutiny to challenged regulations of commercial speech. Further, this Article encourages the Court to better define the intermediate scrutiny standard that Central Hudson set forth by clarifying the second, third, and fourth prongs of the Central Hudson test. Such clarification will encourage more consistency in lower courts’ opinions in the realm of commercial speech.
Jennifer L. Pomeranz,
No Need to Break New Ground: A Response to the Supreme Court’s Threat to Overhaul the Commercial Speech Doctrine,
45 Loy. L.A. L. Rev. 389
Available at: http://digitalcommons.lmu.edu/llr/vol45/iss2/2