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Understanding the Value of Commercial Speech

Since COVID began, many American across the country have been forced to change their jobs. Whether they were laid off, needed the ability to work from home, or took the opportunity to make a career change, A new study highlights that one in three U.S. workers changed or lost jobs in the past year, myself included.

In a pre-pandemic world, I studied journalism with a focus specifically in television broadcasting. When COVID hit and my job offers were revoked in a very niche market that had no foreseeable comeback, I was forced to find another job. Now, I am the marketing manager for a Charlotte based company where I am in charge of their digital marketing including their website, social media profiles, blog, YouTube Channel and much more. This was a huge learning curve for a few reasons. First, they had no social media presence so I started from scratch. Second, I had to learn the industry I was going to create content for. Third, I had to learn how to advertise and market this service. In general I had to learn an entirely new skill set, and this is where my eyes were opened to commercial speech.

Commercial Speech is defined as any type of copy that is designed to influence profit based off of a service or good. Your Instagram ad, latest blog, pull tab flyer, yard sign and YouTube tutorial are all examples of this. “Controversy comes from a failure to recognize how commercial speech furthers the values implicit in the First Amendment’s guarantee of free expression” according to an article written by, Martin H. Redish. Reddish developed a framework that better defines the values of free expression and assists people understand how commercial speech advances free speech values.

Protecting Commercial Speech, however, has not always been at the forefront of Constitutional Scholars agenda. It was not until the Virginia State Pharmacy Board v. Virginia Citizens Consumer Council case of 1976 that advertising and marketing content received protection under the First Amendment. Here, the United States Supreme Court concluded that a state could not limit pharmacists’ right to provide information about prescription drug prices.

In an almost unanimous decision, the Court defined then and there, that the freedom we are granted as private citizens extends to the content produced by corporations. They said that the First Amendment protects willing speakers and willing listeners equally. The Court noted that in cases of commercial speech, such as price advertising, freedom of speech protections apply just as they would to noncommercial speech.

This allows advertisers and marketing professionals alike to entice you to buy or subscribe to their product or service in any way they want… well almost. Not all speech is protected. As a marketing manager I had to become aware of the rules and regulations quickly.

Types of Commercial Speech that are not protected include Obscenity, Fighting words, Defamation (including libel and slander), Child pornography, Perjury, Blackmail, Incitement to imminent lawless action, and of course True threats.

The Central Hudson test is the Supreme Court's parameters for determining whether or not types of speech are protected under the First Amendment. If it meets these requirements, then there are three other prongs:

During this test, three things must be examined;

  • The government must have a substantial interest.

  • The regulation must directly and materially advance the government’s substantial interest.

  • The regulation must be narrowly tailored.



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