Advancing an Adaptive Standard of Strict Scrutiny for Content-Based Commercial Speech Regulation
20 Pages Posted: 6 Oct 2012
Date Written: October 5, 2012
Over the course of several decades, commercial speech has largely shed its “subordinate status” as a class of expression ungoverned by ordinary First Amendment principles. This Article argues that the Supreme Court should take the next logical step in the evolution of its commercial speech doctrine and subject content-based regulation in this area to the standard of strict scrutiny applied elsewhere. As in other settings, strict scrutiny here could be adapted to its context. In particular, strict scrutiny in the commercial realm could incorporate the understanding that government has a powerful interest in preventing false, deceptive, and misleading representation. In addition, the Court’s current regime of light scrutiny for compelled disclosures in commercial speech need not be wholly discarded; it could continue to apply to required statements that are factual, objective, and not unduly burdensome. Mandated statements that bear overtones of ideology or are materially onerous, however, should be required to satisfy an adaptive standard of strict scrutiny. The Article’s proposed approach would invalidate Food and Drug Administration regulations requiring tobacco companies to place graphic images on cigarette packages warning of the dangers of smoking.
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