Understanding the Central Hudson Test: Four-Part Analysis of Commercial Speech Regulation , Study notes of Communication

Download Understanding the Central Hudson Test: Four-Part Analysis of Commercial Speech Regulation and more Study notes Communication in PDF only on Docsity! Central Hudson Test From your readings, know the four-part Central Hudson test. Be able to correctly recognize and apply it in hypothetical situations. 1. the First Amendment does not protect the commercial speech being regulated 2. the asserted government interest is substantial 3. the regulation directly advances the government interest 4. the regulation is “not more extensive than is necessary to serve [those] interests  What must the government do under the second, third and fourth prongs to convince the court that the regulation is constitutional? (On Quiz #1 and #2) o Second prong-government must do more than “merely asserting” its interest. It must “clearly articulate and justify the state interest.”  Gov. attempts to protect the public’s “health, safety, and welfare” are typically considered substantial interests. (tobacco products by minors, reducing the demand for casino gambling, etc.) o Third prong- “the government must ‘demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.’” This requires more than “mere speculation or conjecture.” o Fourth prong-requires a “reasonable fit” between the government interest and the regulation. The government need not adopt the “least restrictive” means of achieving that interest, but “it must utilize a means that is narrowly tailored to its desired objective.”  What are commonly accepted as substantial interests? o Health, safety and welfare  If the government can achieve its interests in a manner that does not restrict commercial speech, or that restricts less speech, must it do so?  Yes! o Does the USSC seem to have abandoned the "reasonable fit" test and returned to the "least restrictive means possible" requirement under the fourth prong?  Yes!- it has strengthened the Central Hudson test by returning to its original requirement o How is the Central Hudson test strengthened by returning to its original requirement? (see footnotes in Mass Communication Law in Oklahoma)  It is strengthened b/c it has gone back to the way it was originally, without the reforms that came about over time. It no longer gives deference to the govt. judgments or upholds restraints on commercial speech as long as they are reasonable and proportionate to the interests served, as it did as recently as a decade ago. Instead it now employs a standard so rigorous that it results in the virtually automatic invalidation of laws restraining commercial speech.  How have the prongs been applied (including the corresponding reasoning) in specific cases? o Posadas  Using the Central Hudson test, the U.S. Supreme Court upheld a ban on advertisements for a legal activity.  The U.S. Supreme Court applied the Central Hudson test so weakly that Puerto Rico's ban on casino advertising passed muster. The opinion reasoned that the "greater power includes the lesser." In other words, if the government has the power to ban a product, it can ban advertising for the product. So if the state has the power to ban casino gambling, it has the lesser power to ban advertising of casino gambling o Rubin v. Coors  The U.S. Court struck down a federal law prohibiting the display of the alcohol content of beer on beer labels because other alternatives “such as directly limiting the alcohol content of beers…” would advance the govt.’s interest in a manner less intrusive of F.A. rights.  The law was designed to prevent "strength wars." However, the U.S. Supreme Court said the Ban failed parts 2, 3 and 4 of the Central Hudson test.  Part (2) Substantial government interest in protecting health, safety and welfare of public by avoiding a "strength war" that could lead to more alcoholism. HOWEVER, additional federal interest in helping facilitate state efforts to regulate alcohol under 21st Amendment was not substantial. The federal government doesn't have such authority and hadn't shown that states needed that help.  Part (3) The regulation did not advance the government's interest because other regulations undermined it by allowing the marketing of "malt liquors" and requiring alcohol content on wine and spirits. The regulation being challenged actually hindered people who want low-alcohol content beer.  Part (4) The regulation was overbroad because other alternatives -- i.e., regulating alcohol content -- would be less intrusive on First Amendment protection for commercial speech. o 44 Liquormart v. Inc. v. Rhode Island (1996):  The U.S. Supreme Court struck down a Rhode Island law banning retail liquor price advertising, except at the point of sale.  Justice Stevens wrote the majority opinion and recounted the key role advertising has played throughout U.S. history, saying that even in colonial days the public relied on ``commercial speech'' for vital information. He said Rhode Island's power to ban the sale of liquor entirely does not include a power to censor all advertisements that contain accurate and non-misleading information about the price of the product. The state has other less