Commercial Speech: Protection from “Vices”

The Supreme Court has been wrestling with the issue of regulating commercial speech for 70 years. More recently, the Court has been dealing specifically with government attempts to regulate conduct by regulating speech about that conduct, such as warnings on cigarette packs to discourage smoking, or limits on alcohol and gambling advertising to reduce consumption in those areas. How useful has this approach been?

Through decisions and tests set to determine commercial speech and the protections allowed to advertisements, the Supreme Court has made it clear that content about “vice” products and materials are to be given the same First Amendment protections as other speech.

This position is supported by the Court’s decision in Pitt News v Pappert where the Court found that even though the Pennsylvania ban on alcohol ads in college media supported a substantial government interest in discouraging alcohol abuse and underage drinking, the restriction failed the Central Hudson test.

One could also argue that the government plays a role in defining just what products or materials are defined as vices and receive additional scrutiny from the Federal Trade Commission and other federal watchdogs like the Food and Drug Administration and the Bureau of Alcohol, Tobacco and Firearms.

For example, after the Sandy Hook Elementary School shooting in Connecticut, the National Rifle Association came under fire for supporting a citizen’s right to bear arms as stated in the Second Amendment.

In an attempt to appease citizen concerns about gun laws and distribution, the government started to introduce new regulations and impose existing laws regarding gun sales and trade.  Major stores like Walmart stopped restocking items associated with bullets and guns in anticipation of the greatly debated gun legislation of 2013.

gun violence adsDue to the desire to increase awareness about the potential gun control, nonprofit organizations like Moms Demand Action for Gun Sense in America and Mayors Against Illegal Guns started running editorial advertisements to promote “matters of the highest public interest and concern” which is protected by the First Amendment according to New York Times v Sullivan.

Ads like this one and this video titled, “Demand a Plan to End Gun Violence,” were widely circulated on national television, social media, and discussed over the radio via National Public Radio and other well-respected media outlets.

On the other hand, one could note that the National Rifle Association (NRA) had a noted lack in advertising during that same period.┬áThere was a noted increase in public relations efforts, interviews with national media outlets, and they even released the NRA: Practice Range mobile application on iTunes, but advertising was few and far between. The fact remains that just because the government can ban a product, it doesn’t mean that it’s constitutional for them to ban speech about the product.

I question whether or not the government regulated the NRA’s advertising after the December shooting under the argument that NRA advertisements would be “commercial speech” promoting gun use and purchases (economic motivation) that hindered a substantial interest of the federal government to promote public safety. There is no proof of such a restriction, but based off of this week’s readings, the likelihood is high.

What do you think?

Yasheaka Oakley Owens

Yasheaka Oakley Owens is the owner of YOakleyPR, a woman-owned small business that provides public relations, social media, and online marketing support services to small businesses and 501(c)(3) nonprofit organizations in Southeastern Pennsylvania, Southern New Jersey and Delaware.

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