Nonetheless, the Court denied certiorari in both cases. The Fourth Circuit decisions are plainly inconsistent with the Supreme Court’s commercial speech analysis following Central Hudson. 1989) (ordinance prohibiting off-premises sign boards). City of Somerville, 878 F.2d 513 (1st Cir. 1990) (ordinances prohibiting off-premises signs) Ackerly Communications of Massachusetts v. In contrast, similar ordinances have been stricken in other circuits. The Fourth Circuit stated that Baltimore’s interest in 'protecting children who are not yet independently able to assess the value of the message presented' was sufficiently related to a ban on billboard advertising of tobacco products (except in business and industrial areas) to meet the Central Hudson standard. Lexis 2792 (April 28, 1997), the Fourth Circuit upheld a Baltimore ordinance banning certain advertising of tobacco and alcohol products. Mayor and City Council of Baltimore City, 63 F.3d 1318 (4th Cir. Lexis _ (April 28, 1997) and in Anheuser-Busch v. Mayor and City Council of Baltimore, 63 F.3d 1305 (4th Cir. Two recent Fourth Circuit decisions demonstrate the perils of such analysis, notwithstanding the outcome of 44 Liquormart and most of the Supreme Court’s decisions, which are generally protective of commercial speech. But, despite the speech-protective outcome of the decision, the Court continued to adhere to its Central Hudson mode of analysis. The Court’s primary rationale for doing so was that the state could have accomplished its asserted objective of reducing temperance by restricting less speech or, indeed, without restricting speech at all. 1495 (1996), the Supreme Court unanimously invalidated Rhode Island’s restrictions on advertising the price of alcohol. (In a later case, this prong of the test was redefined as requiring only that the 'fit' between the state's goal and the challenged regulation be 'reasonable.')Īpplying this test, the Supreme Court has often arrived at decisions that are extremely protective of commercial speech. Whether the regulation is no more extensive than necessary to serve that interest.Whether the regulation 'directly advances' that government interest and.Whether the government interest asserted to justify the regulation is 'substantial'.Whether the commercial speech concerns a lawful activity and is not misleading.Specifically, under the Central Hudson test, a court must determine: Public Service Commission of New York, 447 U.S. In assessing restrictions on communications that propose a commercial transaction, the Court applies a balancing test that weighs the competing interests of commercial speakers and government regulators. The lack of clarity about the rights of advertisers has also encouraged bureaucrats and politicians to attack the commercial speech of politically unpopular interests – most dramatically tobacco. The Court’s balancing test has produced inconsistent results and sowed confusion in the lower courts. The Supreme Court’s current approach to commercial speech exemplifies the perils of balancing tests, particularly when the right to communicate is at stake.

Commercial speech central hudson test