Valentine v. Chrestensen (1942): Summary & Decision

Instructor: Kenneth Poortvliet

Kenneth has a JD, practiced law for over 10 years, and has taught criminal justice courses as a full-time instructor.

The First Amendment guarantees our freedom to speak our minds. But does it protect advertising the same way it protects religious and political speech? In this lesson we will learn how the Supreme Court's decision in ''Valentine v. Chrestensen'' impacted commercial speech.

Protecting Freedom

The USS S-49 was a WWI era submarine built to fight for the protection and freedom of the United States. After it was decommissioned, it became the stage of a battle for the protection of free speech.

Facts of Valentine v. Chrestensen

Francis J. Chrestensen, a retired Navy captain, bought the decommissioned submarine from Boston Metal and Iron Salvage Co., which had obtained it after its five years of service in the U.S. Navy. Chrestensen used the sub as a tourist attraction. In 1940, he towed S-49 to New York City and requested mooring at a city pier close to downtown, but was denied. He instead moored the sub at a nearby state pier that was not as visible to the waterfront crowd. To draw visitors to the mooring site, Chrestensen walked up and down the busy New York streets handing out handbills advertising his tours.

A handbill advertising tours of a privately owned submarine became a focal point of a free speech battle.
USS S-49

New York City Police Commissioner Lewis Valentine told Chrestensen he was violating a city ordinance that prohibited distribution of printed materials except to spread information or register a protest. So Chrestensen revised the handbill, removing admission prices from the front and printing a protest of the city's wharfage policies on the back. Upon inspecting a proof of the revised handbill, Valentine prohibited Chrestensen from passing it out, saying it still amounted to commercial advertising.

Chrestensen sued the City of New York in federal district court and won an injunction against the city. New York appealed the injunction to the 2nd Circuit Court of Appeals. A divided circuit court panel affirmed the injunction. The city appealed that ruling to the U.S. Supreme Court.

Historical Background

The case would mark a significant shift in the evolution of free speech rights in America. In 1940, the very year Chrestensen began his fight, the U.S. Supreme Court ruled in Cantwell v. Connecticut that the First Amendment's free speech clause applies equally to the states through the 14th Amendment, which assures equal protection under the law. The court ruled that the incorporation doctrine, which establishes that the states must honor rights deemed fundamental to justice, applies to free speech.

Issue and Decision

Because Cantwell required the states to respect the right to free speech, the court now had to decide if New York City infringed on Chrestensen's First and 14th Amendment rights by prohibiting him from distributing his revised handbill. The court ruled that it did not.


Writing for the majority, Justice Owen Roberts wrote, ''If the respondent was attempting to use the streets of New York by distributing commercial advertising, the prohibition of the code provision was lawfully invoked against his conduct.'' The court ruled that the Constitution does not protect commercial speech.

Roberts' opinion did not define commercial speech. It merely stated that the reworded handbill still amounted to advertising and therefore was subject to prohibition. By implication, the ruling established that the government can regulate any commercial speech. The ruling would stand as constitutional law for 34 years.

Then in Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, a 1976 case, the court revisited the question of what kind of speech merits protection under the law. That ruling, which overturned a Virginia prohibition on pharmacists advertising drug prices, states that the government can't prohibit the free flow of information simply by declaring speech commercial. It takes a more measured and analytical approach than Valentine.

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