Governmental Regulation of Communications Industries
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
As in the previous section, the governmental regulations here considered may have only the most indirect relation to freedom of expression, or may clearly implicate that freedom even though the purpose of the particular regulation is not to reach the content of the message. First, however, the judicially formulated doctrine distinguishing commercial expression from other forms is brieﬂy considered.
Commercial Speech.—Starting in the 1970s, the Court’s treatment of “commercial speech” underwent a transformation from total nonprotection under the First Amendment to qualified protection. The conclusion that a communication proposing a commercial transaction is a different order of speech underserving of First Amendment protection was arrived at almost casually in 1942 in Valentine v. Chrestensen.1074 In Chrestensen, the Court upheld a city ordinance prohibiting distribution on the street of “commercial and business advertising matter,” as applied to an exhibitor of a submarine who distributed leaﬂets describing his submarine on one side and on the other side protesting the city’s refusal of certain docking facilities. The doctrine was in any event limited to promotion of commercial activities; the fact that expression was disseminated for profit or through commercial channels did not expose it to any greater regulation than if it were offered for free.1075 The doctrine lasted in this form for more than twenty years.
The Court later modified this position so that commercial speech is protected “from unwarranted governmental regulation,” although its nature makes it subject to greater limitations than may be imposed on expression not solely related to the economic interests of the speaker and its audience.1076 The change to its earlier holdings was accomplished within a brief span of time in which the Justices haltingly but then decisively moved to a new position. Applying the doctrine in a narrow fivetofour decision, the Court sustained the application of a city’s ban on employment discrimination to bar sex-designated employment advertising in a newspaper.1077 Suggesting that speech does not lose its constitutional protection simply because it appears in a commercial context, Justice Powell, for the Court, did find the placing of want-ads in newspapers to be “classic examples of commercial speech,” devoid of expressions of opinions with respect to issues of social policy; so the “did no more than propose a commercial transaction.” But the Justice also noted that employment discrimination, which was facilitated by the advertisements, was itself illegal.1078
Next, the Court overturned a conviction under a state statute that made it illegal, by sale or circulation of any publication, to encourage or prompt the procuring of an abortion. The Court held the statute unconstitutional as applied to an editor of a weekly newspaper who published an advertisement announcing the availability of legal and safe abortions in another state and detailing the assistance that would be provided state residents in obtaining abortions in the other state.1079 The Court discerned that the advertisements conveyed information of other than a purely commercial nature, that they related to services that were legal in the other jurisdiction, and that the state could not prevent its residents from obtaining abortions in the other state or punish them for doing so.
Then, the Court swept all these distinctions away as it voided a statute that declared it unprofessional conduct for a licensed pharmacist to advertise the prices of prescription drugs.1080 In a suit brought by consumers to protect their right to receive information, the Court held that speech that does no more than propose a commercial transaction is nonetheless of such social value as to be entitled to protection. Consumers’ interests in receiving factual information about prices may even be of greater value than political debate, but in any event price competition and access to information about it is in the public interest. State interests asserted in support of the ban—protection of professionalism and the quality of prescription goods—were found either badly served or not served by the statute.1081
Turning from the interests of consumers to receive information to the asserted right of advertisers to communicate, the Court voided several restrictions. The Court voided a municipal ordinance that barred the display of “For sale” and “Sold” signs on residential lawns, purportedly so as to limit “white ﬂight” resulting from a “fear psychology” that developed among white residents following sale of homes to nonwhites. The right of owners to communicate their intention to sell a commodity and the right of potential buyers to receive the message was protected, the Court determined; the community interest could have been achieved by less restrictive means and in any event may not be achieved by restricting the free ﬂow of truthful information.1082 Similarly, deciding a question it had reserved in the Virginia Pharmacy case, the Court held that a state could not forbid lawyers from advertising the prices they charged for the performance of routine legal services.1083 None of the proffered state justifications for the ban was deemed sufficient to overcome the private and societal interest in the free exchange of this form of speech.1084 Nor may a state categorically prohibit attorney advertising through mailings that target persons known to face particular legal problems,1085 or prohibit an attorney from holding himself out as a certified civil trial specialist,1086 or prohibit a certified public accountant from holding herself out as a certified financial planner.1087
More recently, the Court has distinguished between laws that regulate the conduct of sellers versus those that regulate a seller’s speech. In Expressions Hair Design v. Schneiderman, the Court held that a New York State statute that prohibits businesses from displaying a cash price alongside a surcharge for credit card purchases burdens speech.1088 Relying on Supreme Court precedent suggesting that “price regulation alone regulates conduct, not speech,” the lower court held that the statute was constitutional.1089 The Supreme Court disagreed, stating “[w]hat the law does regulate is how sellers may communicate their prices,” and “[i]n regulating the communication of prices rather than prices themselves, [the statute] regulates speech.”1090 The Court, however, remanded the case to the lower court to determine in the first instance whether the law survives First Amendment scrutiny.1091
However, a state has been held to have a much greater countervailing interest in regulating person-to-person solicitation of clients by attorneys; therefore, especially because in-person solicitation is “a business transaction in which speech is an essential but subordinate component,” the state interest need only be important rather than compelling.1092 Similarly, the Court upheld a rule prohibiting high school coaches from recruiting middle school athletes, finding that “the dangers of undue inﬂuence and overreaching that exist when a lawyer chases an ambulance are also present when a high school coach contacts an eighth grader.”1093 The Court later refused, however, to extend this principle to in-person solicitation by certified public accountants, explaining that CPAs, unlike attorneys, are not professionally “trained in the art of persuasion,” and that the typical business executive client of a CPA is “far less susceptible to manipulation” than was the accident victim in Ohralik.1094 A ban on personal solicitation is “justified only in situations ‘inherently conducive to overreaching and other forms of misconduct.’”1095 To allow enforcement of such a broad prophylactic rule absent identification of a serious problem such as ambulance chasing, the Court explained, would dilute commercial speech protection “almost to nothing.”1096
Moreover, a statute prohibiting the practice of optometry under a trade name was sustained because there was “a significant possibility” that the public might be misled through deceptive use of the same or similar trade names.1097 But a state regulatory commission prohibition of utility advertisements “intended to stimulate the purchase of utility services” was held unjustified by the asserted interests in energy consumption and avoidance of subsidization of additional energy costs by all consumers.1098
Although commercial speech is entitled to First Amendment protection, the Court has clearly held that it is different from other forms of expression; it has remarked on the commonsense differences between speech that does no more than propose a commercial transaction and other varieties.1099 The Court has developed the four-pronged Central Hudson test to measure the validity of restraints upon commercial expression.1100
Under the first prong of the test, certain commercial speech is not entitled to protection; the informational function of advertising is the First Amendment concern and if an advertisement does not accurately inform the public about lawful activity, it can be suppressed.1101
Second, if the speech is protected, the interest of the government in regulating and limiting it must be assessed. The state must assert a substantial interest to be achieved by restrictions on commercial speech.1102
Third, the restriction cannot be sustained if it provides only ineffective or remote support for the asserted purpose.1103 Instead, the regulation must “directly advance” the governmental interest. The Court resolves this issue with reference to aggregate effects, and does not limit its consideration to effects on the challenging litigant.1104
Fourth, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restriction cannot survive.1105 The Court has rejected the idea that a “least restrictive means” test is required. Instead, what is now required is a reasonable “fit” between means and ends, with the means “narrowly tailored to achieve the desired objective.”1106 The Court, however, does “not equate this test with the less rigorous obstacles of rational basis review; . . . the existence of ‘numerous and obvious less-burdensome alternatives to the restriction on commercial speech . . . is certainly a relevant consideration in determining whether the ‘between ends and means is reasonable.’”1107
The “reasonable fit” standard has some teeth, the Court made clear in City of Cincinnati v. Discovery Network, Inc.,1108 striking down a city’s prohibition on distribution of “commercial handbills” through freestanding newsracks located on city property. The city’s aesthetic interest in reducing visual clutter was furthered by reducing the total number of newsracks, but the distinction between prohibited “commercial” publications and permitted “newspapers” bore “no relationship whatsoever” to this legitimate interest.1109 The city could not, the Court ruled, single out commercial speech to bear the full onus when “all newsracks, regardless of whether they contain commercial or noncommercial publications, are equally at fault.”1110 By contrast, the Court upheld a federal law that prohibited broadcast of lottery advertisements by a broadcaster in a state that prohibits lotteries, while allowing broadcast of such ads by stations in states that sponsor lotteries. There was a “reasonable fit” between the restriction and the asserted federal interest in supporting state anti-gambling policies without unduly interfering with policies of neighboring states that promote lotteries.1111 The prohibition “directly served” the congressional interest, and could be applied to a broadcaster whose principal audience was in an adjoining lottery state, and who sought to run ads for that state’s lottery.1112
In 1999, the Court struck down a provision of the same statute as applied to advertisements for private casino gambling that are broadcast by radio and television stations located in a state where such gambling is legal.1113 The Court emphasized the interrelatedness of the four parts of the Central Hudson test: “Each [part] raises a relevant question that may not be dispositive to the First Amendment inquiry, but the answer to which may inform a judgment concerning the other three.”1114 For example, although the government has a substantial interest in reducing the social costs of gambling, the fact that the Congress has simultaneously encouraged gambling, because of its economic benefits, makes it more difficult for the government to demonstrate that its restriction on commercial speech materially advances its asserted interest and constitutes a reasonable “fit.”1115 In this case, “[t]he operation of [18 U. S. C. ] § 1304 and its attendant regulatory regime is so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it.”1116 Moreoever, “the regulation distinguishes among the indistinct, permitting a variety of speech that poses the same risks the Government purports to fear, while banning messages unlikely to cause any harm at all.”1117
In Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, the Court asserted that “the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling.”1118 Subsequently, however, the Court eschewed reliance on Posadas,1119 and it seems doubtful that the Court would again embrace the broad principle that government may ban all advertising of an activity that it permits but has power to prohibit. Indeed, the Court’s very holding in 44 Liquormart, Inc. v. Rhode Island,1120 striking down the state’s ban on advertisements that provide truthful information about liquor prices, is inconsistent with the general proposition. A Court plurality in 44 Liquormart squarely rejected Posadas, calling it “erroneous,” declining to give force to its “highly deferential approach,” and proclaiming that a state “does not have the broad discretion to suppress truthful, nonmisleading information for paternalistic purposes that the Posadas majority was willing to tolerate.”1121 Four other Justices concluded that Posadas was inconsistent with the “closer look” that the Court has since required in applying the principles of Central Hudson.1122
The “different degree of protection” accorded commercial speech has a number of consequences as regards other First Amendment doctrine. For instance, somewhat broader times, places, and manner regulations are to be tolerated,1123 and the rule against prior restraints may be inapplicable.1124 Further, disseminators of commercial speech are not protected by the overbreadth doctrine.1125 On the other hand, there are circumstances in which the nature of the restriction placed on commercial speech may alter the First Amendment analysis, and even result in the application of a heightened level of scrutiny.
For instance, in Sorrell v. IMS Health, Inc.,1126 the Court struck down state restrictions on pharmacies and “data-miners” selling or leasing information on the prescribing behavior of doctors for marketing purposes and related restrictions limiting the use of that information by pharmaceutical companies.1127 These prohibitions, however, were subject to a number of exceptions, including provisions allowing such prescriber-identifying information to be used for health care research. Because the restrictions only applied to the use of this information for marketing and because they principally applied to pharmaceutical manufacturers of non-generic drugs, the Court found that these restrictions were content-based and speaker-based limits and thus subject to heightened scrutiny.1128
Different degrees of protection may also be discerned among different categories of commercial speech. The first prong of the Central Hudson test means that false, deceptive, or misleading advertisements need not be permitted; government may require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent deception.1129 But even truthful, non-misleading commercial speech may be regulated, and the validity of such regulation is tested by application of the remaining prongs of the Central Hudson test. The test itself does not make further distinctions based on the content of the commercial message or the nature of the governmental interest (that interest need only be “substantial”). Recent decisions suggest, however, that further distinctions may exist. Measures aimed at preserving “a fair bargaining process” between consumer and advertiser1130 may be more likely to pass the test1131 than are regulations designed to implement general health, safety, or moral concerns.1132 As the governmental interest becomes further removed from protecting a fair bargaining process, it may become more difficult to establish the absence of less burdensome regulatory alternatives and the presence of a “reasonable fit” between the commercial speech restriction and the governmental interest.1133
Taxation.—Disclaiming any intimation “that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government,” the Court voided a state two-percent tax on the gross receipts of advertising in newspapers with a circulation exceeding 20,000 copies a week.1134 In the Court’s view, the tax was analogous to the 18th-century English practice of imposing advertising and stamp taxes on newspapers for the express purpose of pricing the opposition penny press beyond the means of the mass of the population.1135 The tax at issue focused exclusively upon newspapers, it imposed a serious burden on the distribution of news to the public, and it appeared to be a discriminatorily selective tax aimed almost solely at the opposition to the state administration.1136 Combined with the standard that government may not impose a tax directly upon the exercise of a constitutional right itself,1137 these tests seem to permit general business taxes upon receipts of businesses engaged in communicating protected expression without raising any First Amendment issues.1138
Ordinarily, a tax singling out the press for differential treatment is highly suspect, and creates a heavy burden of justification on the state. This is so, the Court explained in 1983, because such “a powerful weapon” to single out a small group carries with it a lessened political constraint than do those measures affecting a broader based constituency, and because “differential treatment, unless justified by some special characteristic of the press, suggests that the goal of the regulation is not unrelated to suppression of expression.”1139 The state’s interest in raising revenue is not sufficient justification for differential treatment of the press. Moreover, the Court refused to adopt a rule permitting analysis of the “effective burden” imposed by a differential tax; even if the current effective tax burden could be measured and upheld, the threat of increasing the burden on the press might have “censorial effects,” and “courts as institutions are poorly equipped to evaluate with precision the relative burdens of various methods of taxation.”1140
Also difficult to justify is taxation that targets specific subgroups within a segment of the press for differential treatment. An Arkansas sales tax exemption for newspapers and for “religious, professional, trade, and sports journals” published within the state was struck down as an invalid content-based regulation of the press.1141 Entirely as a result of content, some magazines were treated less favorably than others. The general interest in raising revenue was again rejected as a “compelling” justification for such treatment, and the measure was viewed as not narrowly tailored to achieve other asserted state interests in encouraging “ﬂedgling” publishers and in fostering communications.
The Court seemed to change course somewhat in 1991, upholding a state tax that discriminated among different components of the communications media, and proclaiming that “differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas.”1142
The general principle that government may not impose a financial burden based on the content of speech underlay the Court’s invalidation of New York’s “Son of Sam” law, which provided that a criminal’s income from publications describing his crime was to be placed in escrow and made available to victims of the crime.1143 Although the Court recognized a compelling state interest in ensuring that criminals do not profit from their crimes, and in compensating crime victims, it found that the statute was not narrowly tailored to those ends. The statute applied only to income derived from speech, not to income from other sources, and it was significantly overinclusive because it reached a wide range of literature (e. g., the Confessions of Saint Augustine and Thoreau’s Civil Disobedience) “that did not enable a criminal to profit from his crime while a victim remains uncompensated”1144
Labor Relations.—Just as newspapers and other communications businesses are subject to nondiscriminatory taxation, they are entitled to no immunity from the application of general laws regulating their relations with their employees and prescribing wage and hour standards. In Associated Press v. NLRB,1145 the application of the National Labor Relations Act to a newsgathering agency was found to raise no constitutional problem. “The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. . . . The regulation here in question has no relation whatever to the impartial distribution of news.” Similarly, the Court has found no problem with requiring newspapers to pay minimum wages and observe maximum hours.1146
Antitrust Laws.—Resort to the antitrust laws to break up restraints on competition in the newsgathering and publishing field was found not only to present no First Amendment problem, but to comport with the government’s obligation under that Amendment. Justice Black wrote: “It would be strange indeed, however, if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free ﬂow of ideas does not afford nongovernmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not.”1147
Thus, both newspapers and broadcasters, as well as other such industries, may not engage in monopolistic and other anticompetitive activities free of possibility of antitrust law attack,1148 even if such activities might promote speech.1149
Broadcast Radio and Television.—Because there are a limited number of broadcast frequencies for radio and non-cable television use, the Federal Government licenses access to these frequencies, permitting some applicants to use them and denying the greater number of applicants such permission. Even though this licensing system is in form a variety of prior restraint, the Court has held that it does not present a First Amendment issue because of the unique characteristic of scarcity.1150 Thus, the Federal Communications Commission has broad authority to determine the right of access to broadcasting,1151 although, of course, the regulation must be exercised in a manner that is neutral with regard to the content of the materials broadcast.1152
In certain respects, however, governmental regulation does implicate First Amendment values, and, in Red Lion Broadcasting Co. v. FCC, the Court upheld an FCC regulation that required broadcasters to afford persons an opportunity to reply if they were attacked on the air on the basis of their “honesty, character, integrity or like personal qualities,” or if they were legally qualified candidates and a broadcast editorial endorsed their opponent or opposed them.1153 In Red Lion, Justice White explained that “differences in the characteristics of [various] media justify differences in First Amendment standards applied to them.”1154 Thus, although everyone has a right to speak, write, or publish as he will, subject to very few limitations, there is no comparable right of everyone to broadcast. The frequencies are limited and some few must be given the privilege over others. The particular licensee, however, has no First Amendment right to hold that license and his exclusive privilege may be qualified. Qualification by censorship of content is impermissible, but the First Amendment does not prevent a governmental insistence that a licensee “conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.”1155 Furthermore, said Justice White, “[b]e-cause of the scarcity of radio frequencies, the government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”1156 The broadcasters had argued that, if they were required to provide equal time at their expense to persons attacked and to points of view different from those expressed on the air, expression would be curbed through self-censorship, for fear of controversy and economic loss. Justice White thought this possibility “at best speculative,” but if it should materialize “the Commission is not powerless to insist that they give adequate and fair attention to public issues.”1157
In Columbia Broadcasting System v. Democratic National Committee,1158 the Court rejected claims of political groups that the broadcast networks were constitutionally required to sell them broadcasting time for the presentation of views on controversial issues. The ruling terminated a broad drive to obtain that result, but the fragmented nature of the Court’s multiple opinions precluded a satisfactory evaluation of the constitutional implications of the case. However, in CBS v. FCC,1159 the Court held that Congress had conferred on candidates seeking federal elective office an affirmative, promptly enforceable right of reasonable access to the use of broadcast stations, to be administered through FCC control over license revocations, and held such right of access to be within Congress’s power to grant, the First Amendment notwithstanding. The constitutional analysis was brief and merely restated the spectrum scarcity rationale and the role of the broadcasters as fiduciaries for the public interest.
In FCC v. League of Women Voters,1160 the Court took the same general approach to governmental regulation of broadcasting, but struck down a total ban on editorializing by stations receiving public funding. In summarizing the principles guiding analysis in this area, the Court reaffirmed that Congress may regulate in ways that would be impermissible in other contexts, but indicated that broadcasters are entitled to greater protection than may have been suggested by Red Lion. “[A]lthough the broadcasting industry plainly operates under restraints not imposed upon other media, the thrust of these restrictions has generally been to secure the public’s First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. . . . [T]hese restrictions have been upheld only when we were satisfied that the restriction is narrowly tailored to further a substantial governmental interest.”1161 However, the earlier cases were distinguished. “[I]n sharp contrast to the restrictions upheld in Red Lion or in [CBS v. FCC], which left room for editorial discretion and simply required broadcast editors to grant others access to the microphone, § 399 directly prohibits the broadcaster from speaking out on public issues even in a balanced and fair manner.”1162 The ban on all editorializing was deemed too severe and restrictive a means of accomplishing the governmental purposes—protecting public broadcasting stations from being coerced, through threat or fear of withdrawal of public funding, into becoming “vehicles for governmental propagandizing,” and also keeping the stations “from becoming convenient targets for capture by private interest groups wishing to express their own partisan viewpoints.”1163 Expression of editorial opinion was described as a “form of speech . . . that lies at the heart of First Amendment protection,”1164 and the ban was said to be “defined solely on the basis of . . . content,” the assumption being that editorial speech is speech directed at “controversial issues of public importance.”1165 Moreover, the ban on editorializing was both overinclusive, applying to commentary on local issues of no likely interest to Congress, and underinclusive, not applying at all to expression of controversial opinion in the context of regular programming. Therefore, the Court concluded, the restriction was not narrowly enough tailored to fulfill the government’s purposes.
Sustaining FCC discipline of a broadcaster who aired a record containing a series of repeated “barnyard” words, considered “indecent” but not obscene, the Court posited a new theory to explain why the broadcast industry is less entitled to full constitutional protection than are other communications entities.1166 “First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizens, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder. . . . Second, broadcasting is uniquely accessible to children, even those too young to read. . . . The ease with which children may obtain access to broadcast material . . . amply justif[ies] special treatment of indecent broadcasting.”1167 The Court emphasized the “narrowness” of its holding, which “requires consideration of a host of variables.”1168 The use of more than “an occasional expletive,” the time of day of the broadcast, the likely audience, “and differences between radio, television, and perhaps closed-circuit transmissions” were all relevant in the Court’s view.1169
Governmentally Compelled Right of Reply to Newspapers.— However divided it may have been in dealing with access to the broadcast media, the Court was unanimous in holding void under the First Amendment a state law that granted a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper.1170 Granting that the number of newspapers had declined over the years, that ownership had become concentrated, and that new entries were prohibitively expensive, the Court agreed with proponents of the law that the problem of newspaper responsibility was a great one. But press responsibility, although desirable, “is not mandated by the Constitution,” whereas freedom is. The compulsion exerted by government on a newspaper to print what it would not otherwise print, “a compulsion to publish that which ‘reason tells them should not be published,’” runs afoul of the free press clause.1171
1074 316 U.S. 52 (1942). See also Breard v. City of Alexandria, 341 U.S. 622 (1951). The doctrine was one of the bases upon which the banning of all commercials for cigarettes from radio and television was upheld. Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (D.D.C. 1971) (three-judge court), aff’d per curiam, 405 U.S. 1000 (1972).
1075 Books that are sold for profit, Smith v. California, 361 U.S. 147, 150 (1959); Ginzburg v. United States, 383 U.S. 463, 474–75 (1966), advertisements dealing with political and social matters which newspapers carry for a fee, New York Times Co. v. Sullivan, 376 U.S. 254, 265–66 (1964), motion pictures which are exhibited for an admission fee, United States v. Paramount Pictures, 334 U.S. 131, 166 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501–02 (1952), were all during this period held entitled to full First Amendment protection regardless of the commercial element involved.
1076 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 561 (1980).
1077 Pittsburgh Press Co. v. Comm’n on Human Relations, 413 U.S. 376 (1973).
1078 413 U.S. at 385, 389. The Court continues to hold that government may ban commercial speech related to illegal activity. Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 563–64 (1980).
1079 Bigelow v. Virginia, 421 U.S. 809 (1975).
1080 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). Justice Rehnquist dissented. Id. at 781.
1081 425 U.S. at 763–64 (consumers’ interests), 764–65 (social interest), 766–70 (justifications for the ban).
1082 Linmark Assocs. v. Township of Willingboro, 431 U.S. 85 (1977).
1083 Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Chief Justice Burger and Justices Powell, Stewart, and Rehnquist dissented. Id. at 386, 389, 404.
1084 433 U.S. at 368–79. See also In re R.M.J., 455 U.S. 191 (1982) (invalidating sanctions imposed on attorney for deviating in some respects from rigid prescriptions of advertising style and for engaging in some proscribed advertising practices, because the state could show neither that his advertising was misleading nor that any substantial governmental interest was served by the restraints).
1085 Shapero v. Kentucky Bar Ass’n, 486 U.S. 466 (1988). Shapero was distinguished in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), a 5–4 decision upholding a prohibition on targeted direct-mail solicitations to victims and their relatives for a 30-day period following an accident or disaster. “Shapero dealt with a broad ban on all direct mail solicitations” (id. at 629), the Court explained, and was not supported, as Florida’s more limited ban was, by findings describing the harms to be prevented by the ban. Dissenting Justice Kennedy disagreed that there was a valid distinction, pointing out that in Shapero the Court had said that “the mode of communication [mailings versus potentially more abusive in-person solicitation] makes all the difference,” and that mailings were at issue in both Shapero and Florida Bar. 515 U.S. at 637 (quoting Shapero, 486 U.S. at 475).
1086 Peel v. Illinois Attorney Disciplinary Comm’n, 496 U.S. 91 (1990).
1087 Ibanez v. Florida Bd. of Accountancy, 512 U.S. 136 (1994) (also ruling that Accountancy Board could not reprimand the CPA, who was also a licensed attorney, for truthfully listing her CPA credentials in advertising for her law practice).
1088 581 U.S. ___, No. 15–1391, slip op. (2017).
1089 Id. at 5.
1090 Id. at 9–10.
1091 Id. at 1.
1092 Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978). But compare In re Primus, 426 U.S. 412 (1978). The distinction between in-person and other attorney advertising was continued in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (“print advertising . . . in most cases . . . will lack the coercive force of the personal presence of the trained advocate”).
1093 Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 298 (2007).
1094 Edenfield v. Fane, 507 U.S. 761, 775 (1993).
1095 Edenfield v. Fane, 507 U.S. at 774, quoting In re R.M.J., 455 U.S. at 203, and quoted in Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 298 (2007).
1096 507 U.S. at 777.
1097 Friedman v. Rogers, 440 U.S. 1 (1979).
1098 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557 (1980). See also Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530 (1980) (voiding a ban on utility’s inclusion in monthly bills of inserts discussing controversial issues of public policy). However, the linking of a product to matters of public debate does not thereby entitle an ad to the increased protection afforded noncommercial speech. Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).
1099 Commercial speech is viewed by the Court as usually hardier than other speech; because advertising is the sine qua non of commercial profits, it is less likely to be chilled by regulation. Thus, the difference inheres in both the nature of the speech and the nature of the governmental interest. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771–72 n.24 (1976); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455–56 (1978). It is, of course, important to develop distinctions between commercial speech and other speech for purposes of determining when broader regulation is permissible. The Court’s definitional statements have been general, referring to commercial speech as that “proposing a commercial transaction,” Ohralik v. Ohio State Bar Ass’n, supra, or as “expression related solely to the economic interests of the speaker and its audience.” Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 561 (1980). It has simply viewed as noncommercial the advertising of views on public policy that would inhere to the economic benefit of the speaker. Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530 (1980). So too, the Court has refused to treat as commercial speech charitable solicitation undertaken by professional fundraisers, characterizing the commercial component as “inextricably intertwined with otherwise fully protected speech.” Riley v. National Fed’n of the Blind, 487 U.S. 781, 796 (1988). By contrast, a mixing of home economics information with a sales pitch at a “Tupperware” party did not remove the transaction from commercial speech. Board of Trustees v. Fox, 492 U.S. 469 (1989). In Nike, Inc. v. Kasky, 45 P.3d 243 (Cal. 2002), cert. dismissed, 539 U.S. 654 (2003), Nike was sued for unfair and deceptive practices for allegedly false statements it made concerning the working conditions under which its products were manufactured. The California Supreme Court ruled that the suit could proceed, and the Supreme Court granted certiorari, but then dismissed it as improvidently granted, with a concurring and two dissenting opinions. The issue left undecided was whether Nike’s statements, though they concerned a matter of public debate and appeared in press releases and letters rather than in advertisements for its products, should be deemed “‘commercial speech’ because they might affect consumers’ opinions about the business as a good corporate citizen and thereby affect their purchasing decisions.” Id. at 657 (Stevens, J., concurring). Nike subsequently settled the suit.
1100 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557 (1980). In one case, the Court referred to the test as having three prongs, referring to its second, third, and fourth prongs, as, respectively, its first, second, and third. The Court in that case did, however, apply Central Hudson’s first prong as well. Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995).
1101 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 563, 564 (1980). Within this category fall the cases involving the possibility of deception through such devices as use of trade names, Friedman v. Rogers, 440 U.S. 1 (1979), and solicitation of business by lawyers, Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978), as well as the proposal of an unlawful transaction, Pittsburgh Press Co. v. Commission on Human Relations, 413 U.S. 376 (1973).
1102 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 564, 568–69 (1980). The Court deemed the state’s interests to be clear and substantial. The pattern here is similar to much due process and equal protection litigation as well as expression and religion cases in which the Court accepts the proffered interests as legitimate and worthy. See also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987) (governmental interest in protecting USOC’s exclusive use of word “Olympic” is substantial); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (government’s interest in curbing strength wars among brewers is substantial, but interest in facilitating state regulation of alcohol is not substantial). Contrast United States v. Edge Broadcasting Co., 509 U.S. 418 (1993), finding a substantial federal interest in facilitating state restrictions on lotteries. “Unlike the situation in Edge Broadcasting,” the Coors Court explained, “the policies of some states do not prevent neighboring states from pursuing their own alcohol-related policies within their respective borders.” 514 U.S. at 486. However, in Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), the Court deemed insubstantial a governmental interest in protecting postal patrons from offensive but not obscene materials. For deferential treatment of the governmental interest, see Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986) (Puerto Rico’s “substantial” interest in discouraging casino gambling by residents justifies ban on ads aimed at residents even though residents may legally engage in casino gambling, and even though ads aimed at tourists are permitted).
1103 447 U.S. at 569. The ban here was found to directly advance one of the proffered interests. Contrast this holding with Bates v. State Bar of Arizona, 433 U.S. 350 (1977); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (prohibition on display of alcohol content on beer labels does not directly and materially advance government’s interest in curbing strength wars among brewers, given the inconsistencies and “overall irrationality” of the regulatory scheme); and Edenfield v. Fane, 507 U.S. 761 (1993) (Florida’s ban on in-person solicitation by certified public accountants does not directly advance its legitimate interests in protecting consumers from fraud, protecting consumer privacy, and maintaining professional independence from clients), where the restraints were deemed indirect or ineffectual.
1104 United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993) (“this question cannot be answered by limiting the inquiry to whether the governmental interest is directly advanced as applied to a single person or entity”).
1105 Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 565, 569–71 (1980). This test is, of course, the “least restrictive means” standard. Shelton v. Tucker, 364 U.S. 479, 488 (1960). In Central Hudson, the Court found the ban more extensive than was necessary to effectuate the governmental purpose. See also Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), where the Court held that the governmental interest in not interfering with parental efforts at controlling children’s access to birth control information could not justify a ban on commercial mailings about birth control products; “[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.” Id. at 74. See also Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (there are less intrusive alternatives—e.g., direct limitations on alcohol content of beer—to prohibition on display of alcohol content on beer label). Note, however, that, in San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 539 (1987), the Court applied the test in a manner deferential to Congress: “the restrictions [at issue] are not broader than Congress reasonably could have determined to be necessary to further these interests.”
1106 Board of Trustees v. Fox, 492 U.S. 469, 480 (1989). In a 1993 opinion the Court elaborated on the difference between reasonable fit and least restrictive alternative. “A regulation need not be ‘absolutely the least severe that will achieve the desired end,’ but if there are numerous and obvious less-burdensome alternatives to the restriction . . . , that is certainly a relevant consideration in determining whether the ‘fit’ between ends and means is reasonable.” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n.13 (1993). But see Thompson v. Western States Medical Center, 535 U.S. 357, 368 (2002), in which the Court quoted the fourth prong of the Central Hudson test without mentioning its reformulation by Fox, and added, again without reference to Fox, “In previous cases addressing this final prong of the Central Hudson test, we have made clear that if the government could achieve its interests in a manner that does not restrict speech, or that restricts less speech, the government must do so.” Id. at 371.
1107 Florida Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995).
1108 507 U.S. 410 (1993). See also Edenfield v. Fane, 507 U.S. 761 (1993), decided the same Term, relying on the “directly advance” third prong of Central Hudson to strike down a ban on in-person solicitation by certified public accountants.
1109 507 U.S. at 424.
1110 507 U.S. at 426. The Court also noted the “minute” effect of removing 62 “commercial” newsracks while 1,500 to 2,000 other newsracks remained in place. Id. at 418.
1111 United States v. Edge Broadcasting Co., 509 U.S. 418 (1993).
1112 507 U.S. at 428.
1113 Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173 (1999).
1114 527 U.S. at 184.
1115 527 U.S. at 186–87.
1116 527 U.S. at 190.
1117 527 U.S. at 195.
1118 478 U.S. 328, 345–46 (1986). For discussion of the case, see P. Kurland, Posadas de Puerto Rico v. Tourism Company: “’Twas Strange, ‘Twas Passing Strange; ‘Twas Pitiful, ‘Twas Wondrous Pitiful,” 1986 SUP. CT. REV. 1.
1119 In Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (invalidating a federal ban on revealing alcohol content on malt beverage labels), the Court rejected reliance on Posadas, pointing out that the statement in Posadas had been made only after a determination that the advertising could be upheld under Central Hudson. The Court found it unnecessary to consider the greater-includes-lesser argument in United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993), upholding through application of Central Hudson principles a ban on broadcast of lottery ads.
1120 517 U.S. 484 (1996).
1121 517 U.S. at 510 (opinion of Stevens, joined by Justices Kennedy, Thomas, and Ginsburg). Stevens’ opinion also dismissed the Posadas “greater-includes-the-lesser argument” as “inconsistent with both logic and well-settled doctrine,” pointing out that the First Amendment “presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct.” Id. at 511–512.
1122 517 U.S. at 531–32 (concurring opinion of O’Connor, joined by Chief Justice Rehnquist and by Justices Souter and Breyer).
1123 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 384 (1977). But, in Linmark Associates v. Township of Willingboro, 431 U.S. 85, 93–94 (1977), the Court refused to accept a times, places, and manner defense of an ordinance prohibiting “For Sale” signs on residential lawns. First, ample alternative channels of communication were not available, and second, the ban was seen rather as a content limitation.
1124 Central Hudson Gas & Elec. Co. v. PSC, 447 U.S. 557, 571 n.13 (1980), citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 772 n.24 (1976). See “The Doctrine of Prior Restraint,” supra.
1125 Bates v. State Bar of Arizona, 433 U.S. 350, 379–81 (1977); Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 565 n.8 (1980).
1126 564 U.S. ___, No. 10–779, slip op. (2011).
1127 “Detailers,” marketing specialists employed by pharmaceutical manufacturers, used the reports to refine their marketing tactics and increase sales to doctors.
1128 Although the state put forward a variety of proposed governmental interests to justify the regulations, the Court found these interests (expectation of physician privacy, discouraging harassment of physicians, and protecting the integrity of the doctor-physician relationship) were ill-served by the content-based restrictions. 564 U.S. ___, No. 10–779, slip op. at 17–21. The Court also rejected the argument that the regulations were an appropriate way to reduce health care costs, noting that “[t]he State seeks to achieve its policy objectives through the indirect means of restraining certain speech by certain speakers—that is, by diminishing detailers’ ability to inﬂuence prescription decisions. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the ‘fear that people would make bad decisions if given truthful information’ cannot justify content-based burdens on speech.” Id. at 21–22.
1129 Bates v. State Bar of Arizona, 433 U.S. 350, 383–84 (1977); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978). Requirements that advertisers disclose more information than they otherwise choose to are upheld “as long as [they] are reasonably related to the State’s interest in preventing deception of consumers,” the Court explaining that “[t]he right of a commercial speaker not to divulge accurate information regarding his services is not . . . a fundamental right” requiring strict scrutiny of the disclosure requirement. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 & n.14 (1985) (upholding requirement that attorney’s contingent fees ad mention that unsuccessful plaintiffs might still be liable for court costs).
1130 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996).
1131 See, e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 465 (1978) (upholding ban on in-person solicitation by attorneys due in part to the “potential for overreaching” when a trained advocate “solicits an unsophisticated, injured, or distressed lay person”).
1132 Compare United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) (upholding federal law supporting state interest in protecting citizens from lottery information) and Florida Bar v. Went For It, Inc., 515 U.S. 618, 631 (1995) (upholding a 30-day ban on targeted, direct-mail solicitation of accident victims by attorneys, not because of any presumed susceptibility to overreaching, but because the ban “forestall[s] the outrage and irritation with the . . . legal profession that the [banned] solicitation . . . has engendered”) with Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (striking down federal statute prohibiting display of alcohol content on beer labels) and 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (striking down state law prohibiting display of retail prices in ads for alcoholic beverages).
1133 “[S]everal Members of the Court have expressed doubts about the Central Hudson analysis and whether it should apply in particular cases.” Thompson v. Western States Medical Center, 535 U.S. 357, 367 (2002). Justice Stevens has criticized the Central Hudson test because it seemingly allows regulation of any speech propounded in a commercial context regardless of the content of that speech. “[A]ny description of commercial speech that is intended to identify the category of speech entitled to less First Amendment protection should relate to the reasons for permitting broader regulation: namely, commercial speech’s potential to mislead.” Rubin v. Coors Brewing Co., 514 U.S. 476, 494 (1995) (concurring opinion). The Justice repeated these views in 1996: “when a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands.” 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996) (a portion of the opinion joined by Justices Kennedy and Ginsburg). Justice Thomas, similarly, wrote that, in cases “in which the government’s asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace, the Central Hudson test should not be applied because such an interest’ is per se illegitimate. . . .” Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173, 197 (1999) (Thomas, J., concurring) (internal quotation marks omitted). Other decisions in which the Court majority acknowledged that some Justices would grant commercial speech greater protection than it has under the Central Hudson test include United States v. United Foods, Inc., 533 U.S. 405, 409–410 (2001) (mandated assessments, used for advertising, on handlers of fresh mushrooms struck down as compelled speech, rather than under Central Hudson), and Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 554 (2001) (various state restrictions on tobacco advertising struck down under Central Hudson as overly burdensome).
1134 Grosjean v. American Press Co., 297 U.S. 233, 250 (1936).
1135 297 U.S. at 245–48.
1136 297 U.S. at 250–51. Grosjean was distinguished on this latter basis in Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983).
1137 Murdock v. Pennsylvania, 319 U.S. 105 (1943); Follett v. McCormick, 321 U.S. 573 (1944) (license taxes upon Jehovah’s Witnesses selling religious literature invalid).
1138 Cf. City of Corona v. Corona Daily Independent, 115 Cal. App. 2d 382, 252 P.2d 56 (1953), cert. denied, 346 U.S. 833 (1953) (Justices Black and Douglas dissenting). See also Cammarano v. United States, 358 U.S. 498 (1959) (no First Amendment violation to deny business expense tax deduction for expenses incurred in lobbying about measure affecting one’s business); Leathers v. Medlock, 499 U.S. 439 (1991) (no First Amendment violation in applying general gross receipts tax to cable television services while exempting other communications media).
1139 Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 585 (1983) (invalidating a Minnesota use tax on the cost of paper and ink products used in a publication, and exempting the first $100,000 of such costs each calendar year; Star & Tribune paid roughly two-thirds of all revenues the state raised by the tax). The Court seemed less concerned, however, when the affected group within the press was not so small, upholding application of a gross receipts tax to cable television services even though other segments of the communications media were exempted. Leathers v. Medlock, 499 U.S. 439 (1991).
1140 460 U.S. at 588, 589.
1141 Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987).
1142 Leathers v. Medlock, 499 U.S. 439, 453 (1991) (tax applied to all cable television systems within the state, but not to other segments of the communications media).
1143 Simon & Schuster v. New York Crime Victims Bd., 502 U.S. 105 (1991).
1144 502 U.S. at 122.
1145 301 U.S. 103, 132 (1937).
1146 Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).
1147 Associated Press v. United States, 326 U.S. 1, 20 (1945).
1148 Lorain Journal Co. v. United States, 342 U.S. 143 (1951) (refusal of newspaper publisher who enjoyed a substantial monopoly to sell advertising to persons also advertising over a competing radio station violates antitrust laws); United States v. Radio Corp. of America, 358 U.S. 334 (1959) (FCC approval no bar to antitrust suit); United States v. Greater Buffalo Press, 402 U.S. 549 (1971) (monopolization of color comic supplements). See also FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775 (1978) (upholding FCC rules prospectively barring, and in some instances requiring divesting to prevent, the common ownership of a radio or television broadcast station and a daily newspaper located in the same community).
1149 Citizen Publishing Co. v. United States, 394 U.S. 131 (1969) (pooling arrangement between two newspapers violates antitrust laws; First Amendment argument that one paper will fail if arrangement is outlawed rejected). In response to this decision, Congress enacted the Newspaper Preservation Act to sanction certain joint arrangements where one paper is in danger of failing. 84 Stat. 466 (1970), 15 U.S.C. §§ 1801–1804.
1150 NBC v. United States, 319 U.S. 190 (1943); see also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375–79, 387–89 (1969); FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 798–802 (1978).
1151 NBC v. United States, 319 U.S. 190 (1943); Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266 (1933; FCC v. Pottsville, 309 U.S. 134 (1940); FCC v. ABC, 347 U.S. 284 (1954); Farmers Union v. WDAY, 360 U.S. 525 (1958).
1152 “But Congress did not authorize the Commission to choose among applicants upon the basis of their political, economic or social views or upon any other capricious basis. If it did, or if the Commission by these regulations proposed a choice among applicants upon some such basis, the issue before us would be wholly different.” NBC v. United States, 319 U.S. 190, 226 (1943).
1153 395 U.S. 367, 373 (1969). “The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. This is known as the fairness doctrine. . . .” Id. at 369. The two issues passed on in Red Lion were integral parts of the doctrine.
1154 395 U.S. at 386.
1155 395 U.S. at 389.
1156 395 U.S. at 390.
1157 395 U.S. at 392–93.
1158 412 U.S. 94 (1973).
1159 453 U.S. 367 (1981). The dissent argued that the FCC had assumed, and the Court had confirmed it in assuming, too much authority under the congressional enactment. In its view, Congress had not meant to do away with the traditional deference to the editorial judgments of the broadcasters. Id. at 397 (Justices White, Rehnquist, and Stevens).
1160 468 U.S. 364 (1984), holding unconstitutional § 399 of the Public Broadcasting Act of 1967, as amended. The decision was 5–4, with Justice Brennan’s opinion for the Court being joined by Justices Marshall, Blackmun, Powell, and O’Connor, and with Justices White, Rehnquist (joined by Chief Justice Burger and by Justice White), and Stevens filing dissenting opinions.
1161 468 U.S. at 380. The Court rejected the suggestion that only a “compelling” rather than “substantial” governmental interest can justify restrictions.
1162 468 U.S. at 385.
1163 468 U.S. at 384–85. Dissenting Justice Stevens thought that the ban on editorializing served an important purpose of “maintaining government neutrality in the free marketplace of ideas.” Id. at 409.
1164 468 U.S. at 381.
1165 468 U.S. at 383.
1166 FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
1167 438 U.S. at 748–51. This was the only portion of the constitutional discussion that obtained the support of a majority of the Court. In Denver Area Educational Telecommunications Consortium v. FCC, 518 U.S. 727, 748 (1996), the Court noted that spectrum scarcity “has little to do with a case that involves the effects of television viewing on children.”
1168 438 U.S. at 750. See also id. at 742–43 (plurality opinion), and id. at 755–56 (Justice Powell concurring) (“The Court today reviews only the Commission’s holding that Carlin’s monologue was indecent ‘as broadcast’ at two o’clock in the afternoon, and not the broad sweep of the Commission’s opinion.”).
1169 438 U.S. at 750. Subsequently, the FCC began to apply its indecency standard to ﬂeeting uses of expletives in non-sexual and non-excretory contexts. The U.S. Court of Appeals for the Second Circuit found this practice arbitrary and capricious under the Administrative Procedure Act, but the Supreme Court disagreed and upheld the FCC policy without reaching the First Amendment question. FCC v. Fox Television Stations, Inc., 556 U.S. ___, No. 07–582 (2009). See also CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008), vacated and remanded, 129 S. Ct. 2176 (2009) (invalidating, on non-constitutional grounds, a fine against CBS for broadcasting Janet Jackson’s exposure of her breast for nine-sixteenths of a second during a Super Bowl halftime show). The Supreme Court vacated and remanded this decision to the Third Circuit for further consideration in light of FCC v. Fox Television Stations, Inc. Decisions regarding legislation to ban “indecent” expression in broadcast and cable media as well as in other contexts are discussed under “Non-obscene But Sexually Explicit and Indecent Expression,” infra.
1170 Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974).
1171 418 U.S. at 256. The Court also adverted to the imposed costs of the compelled printing of replies but this seemed secondary to the quoted conclusion. The Court has also held that a state may not require a privately owned utility company to include in its billing envelopes views of a consumer group with which it disagrees. Although a plurality opinion to which four Justices adhered relied heavily on Tornillo, there was no Court majority consensus as to rationale. Pacific Gas & Elec. v. Public Utilities Comm’n, 475 U.S. 1 (1986). See also Hurley v. Irish-American Gay Group, 514 U.S. 334 (1995) (state may not compel parade organizer to allow participation by a parade unit proclaiming message that organizer does not wish to endorse).