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Before 1976, commercial speech, such as advertising, found no protection under the First Amendment of the U.S. Constitution. Today, commercial speech is deemed to be under a level of First Amendment protection (but remains a lower level of protection than political speech). The Central Hudson case delineates a four‐part analysis of commercial speech. Commercial communication (1) must be determined to be neither false, misleading, nor related to unlawful activity, (2) the government interest must be substantial, (3) the restriction must directly advance that interest, and (4) the restriction cannot be more extensive than necessary to advance the government interest.

Note that Central Hudson provides two prongs of protection. However, there are broad exceptions to the First Amendment protections. Commercial speech that is false is not protected, and commercial speech that is more likely to deceive the public than to inform it may be banned. In addition, commercial speech related to illegal activity may also be prohibited.

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Central Hudson Gas & Electric v. Public Service Commission of New York

447 U.S. 557 (1980)

Mr. Justice POWELL delivered the opinion of the Court.

This case presents the question whether a regulation of the Public Service Commission of the State of New York violates the First and Fourteenth Amendments because it completely bans promotional advertising by an electrical utility….

Central Hudson Gas & Electric Corp., the appellant in this case, opposed the ban on First Amendment grounds….

The Commission’s order restricts only commercial speech, that is, expression related solely to the economic interests of the speaker and its audience. The First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation. Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information. In applying the First Amendment to this area, we have rejected the “highly paternalistic” view that government has complete power to suppress or regulate commercial speech. “[P]eople will perceive their own best interests if only they are well enough informed, and … the best means to that end is to open the channels of communication rather than to close them… .” Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all.

Nevertheless, our decisions have recognized “the ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.

The First Amendment’s concern for commercial speech is based on the informational function of advertising. Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, or commercial speech related to illegal activity.

If the communication is neither misleading nor related to unlawful activity, the government’s power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State’s goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government’s purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive….

In commercial speech cases, then, a four‐part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest….

Mr. Justice BRENNAN concurred in the judgment and filed opinion.

Mr. Justice BLACKMUN concurred in the judgment and filed opinion in which Mr. Justice BRENNAN joined.

Mr. Justice STEVENS concurred in the judgment and filed opinion in which Mr. Justice BRENNAN joined.

Mr. Justice REHNQUIST dissented and filed opinion.

Mr. Justice REHNQUIST, dissenting.

The Court today invalidates an order issued by the New York Public Service Commission designed to promote a policy that has been declared to be of critical national concern. The order was issued by the Commission in 1973 in response to the Mideastern oil embargo crisis….

The Court’s asserted justification for invalidating the New York law is the public interest discerned by the Court to underlie the First Amendment in the free flow of commercial information. Prior to this Court’s recent decision in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748(1976), however, commercial speech was afforded no protection under the First Amendment whatsoever….

This Court has previously recognized that although commercial speech may be entitled to First Amendment protection, that protection is not as extensive as that accorded to the advocacy of ideas.

“Expression concerning purely commercial transactions has come within the ambit of the Amendment’s protection only recently. In rejecting the notion that such speech ‘is wholly outside the protection of the First Amendment,’ we were careful not to hold ‘that it is wholly undifferentiable from other forms’ of speech. We have not discarded the ‘common‐sense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.”

The Court’s decision today fails to give due deference to this subordinate position of commercial speech. The Court in so doing returns to the bygone era of Lochner v. New York, 198 U.S. 45 (1905), in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to implement its considered policies….

The view apparently derives from the Court’s frequent reference to the “marketplace of ideas,” which was deemed analogous to the commercial market in which a laissez‐faire policy would lead to optimum economic decisionmaking under the guidance of the “invisible hand.” …

While it is true that an important objective of the First Amendment is to foster the free flow of information, identification of speech that falls within its protection is not aided by the metaphorical reference to a “marketplace of ideas.” There is no reason for believing that the marketplace of ideas is free from market imperfections any more than there is to believe that the invisible hand will always lead to optimum economic decisions in the commercial market. Indeed, many types of speech have been held to fall outside the scope of the First Amendment, thereby subject to governmental regulation, despite this Court’s references to a marketplace of ideas. It also has been held that the government has a greater interest in regulating some types of protected speech than others. And as this Court stated “Of course, an opportunity for rebuttal seldom suffices to undo [the] harm of a defamatory falsehood. Indeed the law of defamation is rooted in our experience that the truth rarely catches up with a lie.” The Court similarly has recognized that false and misleading commercial speech is not entitled to any First Amendment protection….

Nor do I think those who won our independence, while declining to “exalt order at the cost of liberty,” would have viewed a merchant’s unfettered freedom to advertise in hawking his wares as a “liberty” not subject to extensive regulation in light of the government’s substantial interest in attaining “order” in the economic sphere.

Unfortunately, although the “marketplace of ideas” has a historically and sensibly defined context in the world of political speech, it has virtually none in the realm of business transactions….

I remain of the view that the Court unlocked a Pandora’s Box when it “elevated” commercial speech to the level of traditional political speech by according it First Amendment protection … For in the world of political advocacy and its marketplace of ideas, there is no such thing as a “fraudulent” idea: there may be useless proposals, totally unworkable schemes, as well as very sound proposals that will receive the imprimatur of the “marketplace of ideas” through our majoritarian system of election and representative government. The free flow of information is important in this context not because it will lead to the discovery of any objective “truth,” but because it is essential to our system of self‐government.

The notion that more speech is the remedy to expose falsehood and fallacies is wholly out of place in the commercial bazaar, where if applied logically the remedy of one who was defrauded would be merely a statement, available upon request, reciting the Latin maxim “caveat emptor.” But since “fraudulent speech” in this area is to be remediable under Virginia Pharmacy Board, the remedy of one defrauded is a lawsuit or an agency proceeding based on common‐law notions of fraud that are separated by a world of difference from the realm of politics and government… . For in a democracy, the economic is subordinate to the political, a lesson that our ancestors learned long ago, and that our descendants will undoubtedly have to relearn many years hence….

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