Some have argued that the Bill of Rights’ provision protecting freedom of speech also protects “commercial speech” – that is, the right of for-profit corporations to freedom of speech. However, others have argued that the Bill of Rights only protects the free speech of individuals, and therefore no constitutional protection exists for freedom of commercial speech. Nevertheless, Supreme Court rulings on this issue have declared that the Bill of Rights in fact protects the act of speech, rather than the rights of individuals to that act, and this ruling has meant that freedom of commercial speech is protected by the law.
Because commercial speech is in effect protected by law through Supreme Court ruling, it applies at both the federal and state levels. For example, in 1996 in the case of 44 Liquormart v. Rhode Island, the Supreme Court overruled a State Law which attempted to prohibit price advertising of alcoholic drinks (Justia, 1996). The Supreme Court ruled in this case that this would be a restriction of the company’s freedom of commercial speech. The Supreme Court has the power to override State-level laws; therefore, because the Supreme Court ruling on the Bill of Rights’ correct interpretation forms the basis of commercial speech laws, it carried weight at both state and federal levels.
Despite these rulings, however, commercial speech is still not subject to the same levels o protection as individual free speech, and there are some forms of commercial speech that are specifically excluded from the protection offered by the Supreme Court rulings. For the content of commercial speech to be banned, for example, the restriction must pass intermediate scrutiny: this means that restrictions which serve an important government interest are held to be lawful. This might include, for example, the restriction of content which promoted illegal activities or products. Commercial speech which is false or misleading is also not offered any protection under the law (Legal Information Institute, 2017).
- Justia (1996). 44 Liquormart, Inc. v. Rhode Island 517 U.S. 484 (1996). Retrieved from: https://supreme.justia.com/
- Legal Information Institute (2017). Commercial speech. Retrieved from: https://www.law.cornell.edu