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The First Amendment: Commercial Speech, Scrutiny & Restrictions

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  • 0:07 1st Amendment Defined
  • 1:29 Commercial Speech,…
  • 5:37 Bad Frog Brewery v. NY…
  • 7:08 Lesson Summary
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Lesson Transcript
Instructor: Kat Kadian-Baumeyer

Kat has a Master of Science in Organizational Leadership and Management and teaches Business courses.

The First Amendment of the Constitution states that all citizens are free to practice their preferred religion, speak freely and to assemble. Learn how and why businesses are less protected and are held to a higher scrutiny in this lesson.

1st Amendment Defined

The Constitution of the United States sets forth 27 Amendments that do two important things: establishes limited power to the government and protects citizens' rights. Of the 27 Amendments, the first 10 make up the Bill of Rights and include:

  • 1st Amendment - Freedom of speech, religion and press
  • 2nd Amendment - Right to bear arms for lawful purposes
  • 3rd Amendment - Prohibits government from forcing citizens to house soldiers during peaceful times
  • 4th Amendment - Protection against unwanted search and seizure
  • 5th Amendment - Protects against double jeopardy, self-incrimination and abuse by courts
  • 6th Amendment - Right to a fair and impartial jury and a right to an attorney
  • 7th Amendment - Right to a trial by jury in civil cases
  • 8th Amendment - Protection against cruel and unusual punishment and unreasonable bail
  • 9th Amendment - Right to retain rights that are not enumerated in the Constitution
  • 10th Amendment - Provides states with individual power where federal government power does not exist

The First Amendment states all citizens have the freedom to religion, speech, press, to assemble and petition the government. It applies to commerce as well as individual citizens. In this instance, businesses have certain rights under this amendment but with much less government protection.

Commercial Speech, Strict Scrutiny and More

Where private citizens have a right to freedom of speech, businesses fall under commercial speech because it reaches a larger audience like customers. This includes advertisements which are printed, online, or on television or radio. This mainly speaks to false advertising. However, there are other circumstances where the government will step in, especially when there is a substantial interest in doing so.

A good example of government interference occurred in Florida. The Supreme Court decided that Florida lawyers were not permitted to solicit victims by mail or otherwise within the first thirty days of an accident because it cast the profession in a negative light. While businesses are permitted to solicit business through mail advertisements, this form of advertisement made attorneys look like ambulance chasers and could be considered offensive to the victims and their families.

False advertising is another example of a situation in which the government can interfere. This means that businesses' rights are limited from full First Amendment protection. In other words, a business cannot deliberately provide false or inaccurate information to customers and claim freedom of speech as a defense. When Warner-Lambert, makers of Listerine mouthwash, advertised that their product prevented colds, the government stepped in and forced the company to cease and desist, or stop the advertisements. Not only that, the company was also forced to change the ad to say that the product did not prevent colds.

Now, this is not to say that all advertising must be absolute truth; businesses are allowed to exaggerate a bit. This is called puffery and is a very common practice in advertising. It is simply an over-exaggeration of facts, like showing a dog actually asking for a bacon-flavored treat. Everyone knows that dogs cannot talk or even recognize the flavor of bacon. So, saying dogs ask for the treat by name is not false advertising; it's an exaggeration of a dog's reaction to a taste and smell that attracts a canine's attention.

Some ads may even come with a disclaimer explaining that the results may be exaggerated or unlikely. Think about some of the dangerous stunts performed by professional drivers used to sell cars. In fine print, you may see something that reads, 'Closed road, professional driver, performance not typical.' This protects the company from any allegations of false advertising.

The government also imposes content-neutral restrictions, also known as time, place and manner restrictions, on businesses. These restrictions are imposed when government has an interest in the communication being conveyed. Time restrictions regulate the time information is being conveyed. While businesses can advertise or send information to actual or potential customers, there are restrictions on the time the information can be sent. Place restrictions regulate the place information can be placed to ensure that the viewing audience is ripe for the type of information that is disseminated.

Some information meant to communicate a message comes in the form of symbols, images and graphics. Thus, manner restrictions need to be in place so that the symbols or images in ads remain appropriate for the audience. To tie this together, think about advertisements for products intended for an adult audience, like those for the Victoria's Secret Fashion Show. The infomercials show provocative, scantily-clad models wearing only undergarments. Its eye-popping content may not be suitable for a younger audience, so the show airs well after prime-time television ends.

These measures are determined by government through the process of strict scrutiny, which means that the government analyzed a policy and decided that their interference is necessary to protect the citizens. In order to apply strict scrutiny to the First Amendment rights of businesses, the government must deem that the interference is needed to protect the interests of others. Ads for products like alcohol and cigarettes often fall under scrutiny as well.

Bad Frog Brewery v. NY State Liquor Authority

In an interesting case, Bad Frog Brewery sought to distribute their beer in the State of New York. Because alcohol distribution is a highly regulated industry, there is an approval process. When Bad Frog contacted the state through a distributor to sell their beer in liquor stores, they were immediately denied the right to distribute. The reason for the government's interference had less to do with the product and everything to do with the labeling.

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