Commercial speech: Should it still receive unique constitutional treatment?

Last updated May 27, 2025

We live in a commercial culture where corporations, businesses, and individuals advertise their goods and services to consumers. It is an accepted part of living in a capitalistic system. Consumers have a right to receive information about these goods and services — and the attendant prices.

But such “commercial speech” — the legal term for advertising — does not receive the same First Amendment protection as political speech. It is, in the words of free speech scholar Rodney Smolla, a “stepchild” in the First Amendment family. Should this be so? Don’t consumers have just as much a right to hear the prices of goods and services they may want to buy as much as political and other forms of noncommercial speech? 

It is an excellent question and there are many who believe that commercial speech, at least truthful commercial speech, should not receive any less protection. Most notably, Justice Clarence Thomas in his concurring opinion in 44 Liquormart v. Rhode Island (1996) wrote: “I do not see a philosophical or historical basis for asserting that ‘commercial’ speech is of ‘lower value’ than ‘noncommercial speech.’ Indeed, some historical materials suggest to the contrary.”

History of the Commercial Speech Doctrine 

For many years, commercial speech received no protection under the First Amendment. In Valentine v. Chrestensen (1942), the Supreme Court summarily declared the First Amendment did not protect purely commercial advertising, writing that “the Constitution imposes no such restraint on government as respects purely commercial advertising.”

This rule stood for several decades until the mid-1970s when the Court abandoned this approach and emphasized that commercial speech had value to consumers. The Court questioned the viability of denying constitutional protection to commercial speech in Bigelow v. Virginia (1975), writing that “speech is not stripped of First Amendment protection merely because it appears in [commercial] form.” Later, in Virginia State Board of Pharmacy v. Virginia Consumer Council, Inc. (1976), the Supreme Court rejected the “simplistic” approach of Valentine and recognized that consumers have a strong interest in receiving information about the prices of services. Writing for the Court, Justice Harry Blackmun noted that “the particular consumer’s interest in the free flow of commercial information … may be as keen, if not keener by far, than his interest in the day's most urgent political debate.” 

In Virginia Pharmacy, the state argued it needed to suppress price information to protect the public. Justice Blackmun memorably reacted to this by underscoring the purpose of the First Amendment.

There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication, rather than to close them. ... It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us. 

The Court in Virginia Pharmacy thus emphasized the First Amendment rights of consumers to receive information and ideas about commercial products and prices. But the Court in Virginia Pharmacy did not create a specific test to evaluate commercial speech regulations.

Four years later, the Court adopted an intermediate scrutiny test for commercial speech in Central Hudson Gas & Elec. Co. v. Public Serv. Commission (1980). The eponymously named Central Hudson test has an initial threshold prong that the speech must concern lawful activity, must be truthful, and may not be misleading. If the commercial speech concerns illegal activity or is misleading, it is not protected.

But, if it is protected, any restrictions must satisfy three more prongs. First, the government must have a substantial interest in regulating the speech. Second, the restriction must directly advance that interest. Third, the restriction must be no broader than necessary. 

The Burger Court’s Central Hudson test survives to this day. Under this test, all regulations of commercial speech are evaluated under this intermediate scrutiny analysis. This departs from traditional First Amendment doctrine, where content-based laws are subject to strict scrutiny and content-neutral laws are subject to intermediate scrutiny.

At times, the Court has declared that “heightened judicial scrutiny” should apply when a case involves clear content and speaker-based discrimination against commercial speech. For example, the Court in Sorrell v. IMS Health Inc. (2011) invalidated a Vermont law banning the sale, disclosure, and use of pharmacy records revealing the prescription patterns of medical providers. The Court emphasized that the law “imposes a burden based on the content of speech and the identity of the speaker” and, as such, must be subjected to heightened scrutiny. But, the Court did not explain what it meant by “heightened scrutiny” and applied the Central Hudson test later in its analysis, as the regulation failed even that level of judicial review.

The Sixth Circuit has adopted the position that Sorrell’s invocation of “heightened scrutiny” stands for something more than applying Central Hudson. The Sixth Circuit wrote in International Outdoor Association v. City of Troy (2020) that “the intermediate-scrutiny standard applicable to commercial speech under Central Hudson applies only to a speech regulation that is content-neutral on its face.” 

However, other circuits still apply the Central Hudson test. For example, the U.S. Court of Appeals for the Third Circuit in Connor v. Fox Rehabilitation Services (2025) reasoned that Sorrell’s reference to “heightened scrutiny” means more than rational basis and calls for the continued application of the Central Hudson test.

Thus, there is a circuit split on whether the Central Hudson test applies to all regulations of commercial speech or only those that are content-neutral. 

Presumably, the Supreme Court will eventually resolve this circuit split and decide whether the Central Hudson test should apply to all commercial speech restrictions or whether commercial speech should be treated the same as many forms of noncommercial speech.