4.4. SR 11-13-2001 - Laserfiche WebLink

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113 S. Ct. 1505 (Cite as: 507 U.S. 410, *434, 113 S.Ct. 1505, *'1519) Page 15 that interest, and (3) that the regulation "is not more extensive than is necessary to serve that interest." Ibid. The Court refined this test in Board of Trustees of State University of N. Y. v. Fox, 492 U.S., at 480, 109 S. Ct.., at 3035, to clarify that a regulation limiting commercial speech can, in fact, be more extensive than is necessary to serve the government's interest as long as it is not unreasonably so. This intermediate level of scrutiny is a far cry-from strict scrutiny, under which the government interest must be "compelling" and the regulation "narrowly tailored" to serve that interest. See, e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657, 110 S. Ct. 1391, 1396, 108 L.Ed. 2d 652 (1990). FN3. Central Hudson's reference to "misleading" speech appears to include speech that is inherently coercive, such as in-person solicitation. See 447 U.S., at 563, 100 S.Ct., at 2350, citing Ohralik, 436 U.S., at 464-465, 98 S.Ct., at 1923. In Central Hudson, I concurred only in the Court's judgment because I felt the majority's four-part analysis was *435 "not consistent with our prior cases and [did] not provide adequate protection for truthful, nonmisleading, noncoercive commercial speech." 447 U.S., at 573, 100 S. Ct., at 2355. I noted: "Permissible restraints on commercial speech have been limited to measures designed to protect consumers from fraudulent, misleading, or coercive sales techniques." Id., at 574, 100 S. Ct., at 2355. Under the analysis adopted by the *'1520 Central Hudson majority, misleading and coercive commercial speech and commercial speech proposing illegal activities are addressed in the first prong of the four-part test. Yet commercial speech that survives the first prong--i.e., that is not misleading or coercive and that concerns lawful activities--is entitled only to an intermediate level of protection. Furthermore, the "substantial" government interest that Central Hudson requires to justify restrictions on commercial speech does not have to be related to protecting against deception or coercion, for Central Hudson itself left open the possibility that the government's substantial interest in energy conservation might justify a more narrowly drawn restriction on truthful advertising that promotes energy consumption. See id., at 569-572, 100 S.Ct., at 2353-2354. Thus, it is little wonder that when the city of Cincinnati wanted to remove some newsracks from its streets, it chose to eliminate all the commercial newsracks first although its reasons had nothing to do with either the deceptiveness of particular commercial publications or the particular characteristics of commercial newsracks themselves. First, Cincinnati could rely on this Court's broad statements that commercial speech "is of less constitutional moment than other forms of speech," id., at 563, n. 5, 100 S. Ct., at 2349- 2350, n. 5, and occupies a "subordinate position in the scale of First Amendment values," Ohralik, 436 U.S., at 456, 98 S. Ct., at 1918. Second, it knew that under Central Hudson its restrictions on commercial speech would be examined with less enthusiasm and with less exacting scrutiny than any restrictions it might impose on other speech. Indeed, it appears that Cincinnati felt it had no choice under *436 this Court's decisions but to burden commercial newsracks more heavily. See Brief for Petitioner 28 ("Cincinnati ... could run afoul of First Amendment protections afforded noncommercial speech by affording newsrack- type dispensers containing commercial speech like treatment with newsracks containing noncommercial speech"). In this case, Central Hudson's chickens have come home to roost. The Court wisely rejects Cincinnati's argument that it may single out commercial speech simply because it is "low value" speech, see ante, at 1516, and on the facts of this case it is unnecessary to do more. The Court expressly reserves the question whether regulations not directed at the content of commercial speech or adverse effects stemming from that content should be evaluated under the standards applicable to regulations of fully protected speech. Ante, at 1509, n. 11. I believe the Court should answer that question in the affirmative and Copr. © West 2001 No Claim to Orig. U.S. Govt. Works