4.4. SR 11-13-2001 - Laserfiche WebLink

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113 S. Ct. 1505 (Cite as: 507 U.S. 410, *432, 113 S.Ct. 1505, *'1518) Page 14 these grounds is consistent with this Court's emphasis on the First Amendment interests of the listener in the commercial speech context. A listener has little interest in receiving false, misleading, or deceptive commercial information. See id., at *433 38~, 97 S. Ct., at 2709 ("IT]he public and private benefits from commercial speech derive from confidence in its accuracy and reliability"). A listener also has little interest in being codrced into a purchasing decision. See Ohralik v. Ohio State Bar Assn., 436 U.S., at 457, 98 S. Ct., at 1919 ("II]n-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection"). Furthermore, to the extent it exists at all, a listener has only a weak interest in learning about commercial opportunities that the criminal law forbids. In sum, the commercial speech that this Court had permitted government to regulate or *'1519 proscribe was commercial speech that did not "serv[e] individual and societal interests in assuring informed and reliable deeisionmaking." Bates v. State Bar of Arizona, 433 U.S., at 364, 97 S. Ct., at 2699. FN1. In the context of noncommercial speech, by contrast, this Court has adopted rules that protect certain false statements of fact and speech advocating illegal activities. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 725- 726, 11 L.Ed.2d 686 (1964) (liability for false statements regarding public officials may not be imposed without a showing of "actual malice"); Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969) (government may not proscribe advocacy of illegal action "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action"). So the law stood in 1980 when this Court decided Central Hudson and held that all commercial speech was entitled only to an intermediate level of constitutional protection. The majority in Central Hudson reviewed the Court's earlier commercial speech cases and concluded that the Constitution "accords a lesser protection to commercial speech than to other constitutionally guaranteed expression." 447 U.S., at 563, 100 S. Ct., at 2350. As a descriptive matter, this statement was correct, since our cases had recognized that commercial speech could be regulated on grounds that protected noncommercial speech could not. See n. 1, supra. This "lesser protection" did not rest, however, on the fact that commercial speech "is of less constitutional moment than other forms of speech," as the Central Hudson majority asserted. 447 U.S., at 563, n. 5, 100 S. Ct., at 2349, n. 5. [FN2] Rather, it reflected the fact that the listener's *434 First Amendment interests, from which the protection of commercial speech largely derives, allow for certain specific kinds of government regulation that would not be permitted outside the context of commercial speech. FN2. Central Hudson's conclusion that commercial speech is less valuable than noncommercial speech seems to have its roots in an often- quoted passage from Ohralik: "[W]e ... have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression." Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978). As I explain in the text, however, the "limited measure of protection" our cases had afforded commercial speech reflected the fact that we had allowed "modes of regulation that might be impermissible in the realm of noncommercial expression" and not that we had relegated commercial speech to a "subordinate position in the scale of First Amendment values." The Central Hudson majority went on to develop a four-part analysis commensurate with the supposed intermediate status of commercial speech. Under that test, a court reviewing restrictions on commercial speech must first determine whether the speech concerns a lawful activity and is not misleading. [FN3] If the speech does not pass this preliminary threshold, then it is not protected by the First Amendment at all. Id., at 566, 100 S. Ct., at 2351. If it does pass the preliminary threshold, then the government is required to show (1) that the asserted government interest is "substantial," (2) that the regulation at issue "directly advances" Copr. © West 2001 No Claim to Orig. U.S. Govt. Works