A Writer's Guide to the First Amendment: Commercial Speech

I’m already tired of Christmas commercials. Maybe I should petition the government to ban them. Oh, wait. Those regulations would violate the First Amendment freedom of speech. So never mind.

Commercial speech, such as advertisements, gets less protection than non-commercial speech. But less does not mean none. As a general matter, governmental entities cannot regulate commercial speech unless the speech:

• concerns an illegal activity (e.g., the government can ban advertisements for heroin),
• is misleading, or
• the government’s interest in restricting the speech is substantial and the particular regulation directly advances that interest. (This category is so limited that I can’t even come up with a good example.)

Furthermore, the regulation must be narrowly tailored to serve the government’s interest. For example, the government cannot ban advertisements for all drugs when only some are illegal.*

Commercial speech may also receive less protection under statutory and common laws that give private parties the right to sue each other (e.g., lawsuits for libel). Unfortunately, the U.S. Supreme Court has never decided how the commercial speech doctrine applies to private lawsuits and the lower courts don’t always agree with each other.  

But what is commercial speech? Legally, it is any speech that proposes an economic transaction. In lay terms, commercial speech is any speech—verbal, written, or otherwise—that is trying to get you to pay for something the speaker has to offer. This doesn’t necessarily require an explicit solicitation, however. Merely using a trademark on an educational brochure may be enough.

On the other hand, the mere fact that the speaker/writer is in it for the money doesn’t make it commercial speech. Many reporters wouldn’t write news articles if they didn’t get paid, but that doesn’t make the articles commercial speech. And even though you hope your novel will make you a millionaire, it isn’t commercial speech, either.

But that advertisement for your novel and the bookmark or postcard you created to promote it are commercial speech. If you use them to misrepresent the book, you could get into trouble. But no government can pass a regulation prohibiting you from advertising the novel.

So go ahead and join the Christmas rush.

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* This test comes from Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), as modified by Board of Trustees v. Fox, 492 U.S. 469 (1989).

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Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.