Commercial Speech
Advertising and other expression that proposes a commercial transaction, which receives intermediate First Amendment protection under the Central Hudson test.
Commercial speech — primarily advertising — receives First Amendment protection, but less than political or artistic expression. The Supreme Court recognized commercial speech protection in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), overruling the earlier view that commercial speech received no protection.
The Central Hudson test (1980) governs commercial speech regulation: 1. The speech must concern lawful activity and not be misleading 2. The government interest must be substantial 3. The regulation must directly advance the government interest 4. The regulation must be no more extensive than necessary
Regulations that compel disclosure of factual commercial information — like ingredient labels or nutritional facts — receive more deference than regulations that prohibit commercial speech or require commercial speakers to carry ideological messages.
The NIFLA v. Becerra (2018) decision reduced the scope of a separate 'professional speech' doctrine, holding that regulations of professional speech are subject to the same First Amendment standards as other speech regulations rather than receiving categorical lesser protection.