What Do State Legislators Need to Know About Commercial Speech?

Now that Justice Neil Gorsuch is firmly planted on the bench of the U.S. Supreme Court, he is expected to rule on commercial speech, a free speech issue with significant implications for state legislators across the country. “Commercial speech” is a nebulous issue for jurists and legislators alike. Fortunately, the Washington Legal Foundation has published papers on the topic to help state legislators understand what exactly commercial speech means and how policymakers can ensure that legislation is consistent with U.S. Supreme Court jurisprudence.

WLF explains that the U.S. Supreme Court has previously defined commercial speech as “expression related solely to the economic interests of the speaker and its audience.” That definition has since evolved, with the Court determining that merely labeling expression as “commercial speech” does not lessen its First Amendment protections. Therefore, U.S. Supreme Court has subjected regulations on commercial speech to “heightened scrutiny” consequently bringing increased scrutiny on regulations that restrict commercial speech.

What does this mean for state legislators? The Washington Legal Foundation’s paper argues:

 … legislators and regulators must be aware that laws and rules than ban or burden commercial speech in areas such as labor, health, advertising, marketing, and privacy will undergo exacting scrutiny if challenged in court.

Most recently, the U.S. Supreme Court ruled that a New York state law dictating how merchants advertise credit card surcharges was a commercial speech restriction that must be reviewed on First Amendment grounds.

To avoid the fate of New York state’s doomed surcharge law, state legislators must ensure that commercial expression receives the same constitutional protections as other First Amendment rights. To learn more about how state legislators can protect commercial speech rights, read the Washington Legal Foundation’s papers on the issue at the following links:
“Better Think Twice Before Restricting Commercial Speech”

“First Amendment Limits Government’s Power to Compel Commercial Speech”

“What Counts as ‘Commercial Speech’ Today?”