Professional Documents
Culture Documents
Shannon M. Hinegardner*
Abstract: Commercial speech maintains a unique place in First Amendment
jurisprudence, as it is positioned between judicial deference to legislatures
decreeing on economic concerns and judicial protection of speech under the
First Amendment. Nearly thirty years ago, the U.S. Supreme Court handed
down Central Hudson, a seminal case that created standards to determine
whether a regulation is an unconstitutional infringement on commercial
speech. Central Hudson has been undisturbed by further Supreme Court
cases, however it has instigated a substantial amount of critique about the
continued workability of the moving parts of the test. This Note joins such
critiques by taking issue with the third prong of the Central Hudson test that
requires a state regulation on commercial speech to directly advance the
state interest involved. This Note both examines judicial interpretation of
this third prong and suggests a means of remedying the problems through
implementation of a newly-constructed material evidence test.
The third prong must be amended because courts experience difficulties in
determining how much deference they should grant to legislative judgment.
Allowing too much deference to the legislature creates two distinct
problems. First, blindly submitting to the legislative bodys decisions
threatens a dilution of the First Amendments intermediate scrutiny
protection of commercial speech to an unlawful rational basis level. Second,
an overly deferential approach can allow the creation of regulations that keep
the public ignorant of commercial choices by suppressing commercial
speech. Under Central Hudson, courts cannot inquire into the legislatures
motives. This has allowed lawmakers to control undesirable conduct by
restricting commercial speech, especially advertising of potential socially
521
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INTRODUCTION ..........................................................................................524
I. The Third Prongs Shortcomings ............................................526
BACKGROUND ............................................................................................530
II. Central Hudson and Its Progeny .............................................530
A. Central Hudsons Establishment of the Commercial
Speech Test........................................................................530
B. The Emergence of Common Sense Legislative
Judgment............................................................................532
1. Metromedia v. City of San Diego Defers To
Common-Sense Judgment of Local Legislatures. ...532
2. Edenfield v. Fane Requires Evidence Beyond
Mere Speculation and Conjecture............................534
3. Florida Bar v. Went for It, Inc. Furthers the
Common Sense Standard in Dicta. ..........................535
C. Recent Supreme Court Interpretations of the Third
Central Hudson Prong .......................................................536
1. Ibanez Emphasized That the States Burden is Not
Slight. ........................................................................536
2. Coors Brewing Found the Third Prong Standard to
Be Critical................................................................537
3. 44 Liquormart Added the Requirement of
Significant Advancement to Uphold the Third
Prong. ..........................................................................538
4. Greater New Orleans Upheld the Right of the
Audience to Assess the Value of Accurate
Information..................................................................539
5. Lorillard Tobacco Affirmed Food and Drug
Administrations (FDA) Findings About Youth
and Tobacco Use Under the Third Prong....................540
HINEGARDNER FINAL 1/4/2010 10:52:06 AM
INTRODUCTION
Since April 2002, the United States Supreme Court has remained
silent on the ever-elusive doctrine of commercial speech under the First
Amendment. 2 This six-year reticence has spurned a cacophony from lower
courts as the nation continues its path toward consumerism and
commercialization, 3 leaving local courts and legislatures struggling to
determine the parameters of regulation standards on commercial speech. 4
Critics have focused the brunt of their critique of the commercial
speech doctrine on the Central Hudson test, 5 the four-pronged standard the
Court adopted in 1980 to evaluate governmental restrictions on commercial
speech. 6 The Supreme Court established the Central Hudson test to address
* Candidate for Juris Doctor, New England School of Law (2009); B.A., Journalism, Speech
Communication, Miami University (2006). The author may be contacted at
smhinegardner@gmail.com.
1. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 517 (1996) (Scalia, J.,
concurring).
2. See Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002).
3. See R. GEORGE WRIGHT, SELLING WORDS: FREE SPEECH IN A COMMERCIAL CULTURE,
182-83 (1997) (Commercialization . . . reflects a number of underlying societal trends.
Advances in communications technology, urbanization, increasing wealth itself, the
Keynesian revolution in budgeting, changes in family size, and the decline of competing
institutions all have played some role.).
4. See, e.g., Borgner v. Florida Bd. of Dentistry, 284 F.3d 1204, 1210-16 (11th Cir.
2002), cert. denied, 537 U.S. 1080 (2002) (Thomas, J., dissenting) (This case presents an
excellent opportunity to clarify some oft-recurring issues in the First Amendment treatment
of commercial speech and to provide lower courts with guidance . . . .).
5. See, e.g., Scott Joachim, Note, Seeing Beyond the Smoke and Mirrors: A Proposal
for the Abandonment of the Commercial Speech Doctrine and an Analysis of Recent
Tobacco Advertising Regulations, 19 HASTINGS COMM. & ENT. L.J. 517, 541-61 (1997)
(criticizing the commercial/noncommercial distinction and President Clintons proposal for
a partial ban on tobacco advertising); Albert P. Mauro, Jr., Comment, Commercial Speech
after Posadas and Fox: A Rational Basis Wolf in Intermediate Sheeps Clothing, 66 TUL. L.
REV. 1931, 1931 (1992) (arguing that recent judicial opinions have rendered commercial
speech protection an endangered species). Supreme Court justices themselves have even
questioned the continuing validity of Central Hudson standards. Thompson, 535 U.S. at 377
(Thomas, J., concurring) (I continue, however, to adhere to my view that cases such as this
should not be analyzed under the Central Hudson test.).
6. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of N.Y., 447 U.S. 557,
566 (1980). Classifying speech as commercial invokes the Central Hudson test. Id. The
Supreme Court defines commercial speech as speech that propose[s] a commercial
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transaction. Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 473 (1989)
(quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 762
(1976)). Sufficient debate has surrounded defining commercial speech, however a fairly
standard consensus has adhered to the aforementioned definition. See, e.g., Nat Stern, In
Defense of the Imprecise Definition of Commercial Speech, 58 MD. L. REV. 55, 56 (1999).
7. While commercial speech is clearly expression, the police powers of government to
regulate economic aspects of the community and the health, safety, and welfare of citizens
create a countervailing interest to justify special treatment. See Jason R. Burt, Speech
Interests Inherent in the Location of Billboards and Signs: A Method for Unweaving the
Tangled Web of Metromedia, Inc. v. City of San Diego, 2006 BYU L. REV. 473, 474.
8. See Cent. Hudson, 447 U.S. at 564.
9. Some courts view Central Hudson as a three-pronged inquiry by collapsing this first
prong evaluation of truthfulness into the general application of the test. See, e.g., IMS
Health Inc. v. Ayotte, 550 F.3d 42, 78 (1st Cir. 2008) (Under Central Hudson, truthful
commercial speech that does not promote unlawful activity may be limited only if it (1) is in
support of a substantial government interest, (2) directly advances the governmental interest
asserted, and (3) is not more extensive than is necessary to serve that interest.) (internal
citations, quotations omitted). For the purposes of this Note, the Central Hudson test will be
referred to as using four prongs, with further clarification if a court is using the identical but
differently numbered three prongs of analysis.
10. Id.
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11. See infra Parts IV-V. The application of the employment law discrimination
evidentiary standard to commercial speech has been labeled the material evidence test in
this Note. See infra Part IV.
12. See, e.g., Anheuser-Busch, Inc. v. Mayor of Baltimore City, 855 F. Supp. 811, 815
(D. Md. 1994) (noting the difficulty in determining the precise level of scrutiny to review
the citys ordinance).
13. See generally Mauro, supra note 5, at 1953 (noting a downward trend toward
rational basis protection for commercial speech).
14. Ohralik v. Ohio State Bar Assn, 436 U.S. 447, 456 (1978).
15. See, e.g., Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of N.Y., 447 U.S.
557, 573 (1980) (Blackmun, J., concurring).
16. See KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 774 (15th
ed. 2004) (quoting Craig v. Boren, 429 U.S. 190, 220-21 (1976)).
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17. Id. at 643. Rational basis review is the lowest (most lenient) standard of scrutiny and
will never be applied to speech that is actually protected by the First Amendment. However,
low value speech that does not receive First Amendment protection, like obscenity or
fighting words, will be evaluated under rational basis scrutiny. See Brandenburg v. Ohio,
395 U.S. 444, 447-48 (1969); Roth v. United States, 354 U.S. 476, 502 (1957).
18. See Edenfield v. Fane, 507 U.S. 761, 768 (1993). Deference to legislative judgments
is reserved to rational basis review. See Ry. Express Agency v. New York, 336 U.S. 106,
109 (1949).
19. See generally Robert C. Farrell, Successful Rational Basis Claims in the Supreme
Court from the 1971 Term Through Romer v. Evans, 32 IND. L. REV. 357, 399-400 (1999).
Rational basis review [is] not a license for courts to judge the wisdom, fairness, or logic of
legislative choices. Id. at 399 (internal quotations and footnote omitted).
20. See Fed. Commcns Commn v. Beach Commcns, Inc., 508 U.S. 307, 315 (1993)
([T]hose attacking the rationality of the legislative classification have the burden to
negat[e] every conceivable basis that might support it.) (internal quotations omitted). It is
well settled that the First Amendment mandates closer scrutiny of government restrictions
on speech than of its regulation of commerce alone. Greater New Orleans Broad. Assn v.
United States, 527 U.S. 173, 193 (1999).
21. See supra note 20 and accompanying text.
22. Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981).
23. Id. at 509 (We likewise hesitate to disagree with the accumulated, common-sense
judgments of local lawmakers and of the many reviewing courts that billboards are real and
substantial hazards to traffic safety.).
24. See generally id.; Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995); Edenfield v.
Fane, 507 U.S. 761, 761 (1993); Zauderer v. Office of Disciplinary Counsel of the Sup. Ct.
of Ohio, 471 U.S. 626 (1985); Ry. Express Agency v. New York, 336 U.S. 106, 106 (1949).
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25. Cf. Mauro, supra note 5, at 1951-52 (noting the discrepancy between the Courts
current and former position on rational basis scrutiny for commercial speech); see infra text
accompanying notes 189-260.
26. See infra note 29 and accompanying text.
27. When the Supreme Court analyzes the constitutionality of a regulation that burdens
speech protected by the First Amendment, the justices implement three standards of review:
strict scrutiny, intermediate scrutiny through the time, place, and manner test, and
intermediate scrutiny through the Central Hudson test. See Ashutosh Bhagwat, The Test
That Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence, 2007 U. ILL.
L. REV. 783, 784. While Central Hudson is the exclusive test for commercial speech, for all
non-commercial speech cases the trigger to determine which standard to apply is whether
the government regulation is content-based or content-neutral. See id. at 794. A content-
based restriction receives strict scrutiny; a content-neutral restriction receives intermediate
scrutiny via the time, place, and manner test. See id. at 784. The Courts concede that the
time, place, and manner restriction is more lenient than the Central Hudson test for
commercial speech, as the former gives more deference to the legislature. See, e.g.,
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 516-17 (1981). The policy behind
these distinctions is that a restriction based on the content of the speech is subject to a much
stronger judicial analysis because the courts must determine the motives of the legislature in
creating the restriction. SULLIVAN & GUNTHER, supra note 16, at 995 (When regulations are
subject to strict judicial scrutiny, which requires a showing of compelling [governmental]
ends and the unavailability of less restrictive means, the government virtually always loses
and the speaker virtually always wins.). Thus the lower standard of intermediate review
requires less inquiry into the regulation. See SULLIVAN & GUNTHER, supra note 16, at 995.
28. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 484 (1996) (striking
down Rhode Islands ban on alcohol price advertising because it did not directly advance
the state interest in promoting temperance).
29. ROGER A. SHINER, FREEDOM OF COMMERCIAL EXPRESSION 239 (2003) (citing 44
Liquormart, 517 U.S. at 518-26 (Thomas, J., concurring)).
30. See, e.g., Kenneth T. Lopatka, A Contemporary First Amendment Analysis of the
NLRA Section 8(A)(2)-2(5) Anachronism, 2 CHARLESTON L. REV. 1, 57 (2007); Lloyd L.
Drury, III, Disclosure Is Speech: Imposing Meaningful First Amendment Constraints on
SEC Regulatory Authority, 58 S.C. L. REV. 757, 761 (2007).
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regulation through a failure to meet one of the four prongs of the test. 31
None of these prongs address paternalism specifically, so the Court has
become increasingly creative and inconsistent in finding avenues within
Central Hudson to remove paternalistic legislation. 32
These two chief problemsimpermissibly lowering the level of
scrutiny for commercial speech evaluation and Central Hudsons lack of a
method for the court to examine the legislatures motives when confronted
with a paternalistic regulationshould be remedied through a revision of
the third prong of the Central Hudson test. 33 The third prong requires that
the regulation may not be sustained if it provides only ineffective or
remote support for the governments purpose. 34 As Metromedias
common sense standard has given courts the green light to use exactly
this prohibited ineffective or remote support, 35 this Note will accordingly
refute the ability of the government to use common sense as proof of its
reasoning for implementing its restriction on commercial speech. 36
The purpose of the First Amendment is to provide
countermajoritarian protection of speech through judicial insulation. 37 The
Court has the constitutional duty to provide clear standards through which
courts should implement an informed, thoughtful, and standardized
analysis to determine whether the legislature has produced sufficient
evidence. 38 Within this duty of engaging in an informed analysis arises the
duty to determine (1) that the regulation is effective (direct advancement)
in consideration of its harms, 39 and (2) that the regulation is not
31. The Court has yet to develop any specific manipulation of the Central Hudson test
to address paternalistic concerns. See 44 Liquormart, 517 U.S. at 517-18 (Scalia, J.,
concurring) (noting Justices Scalia and Thomass discomfort with the Central Hudson test
for paternalistic governmental policies, but lack of the wherewithal to declare Central
Hudson wrongor at least the wherewithal to say what ought to replace it).
32. See infra Parts II.D, III.B.
33. See infra Parts IV-V.
34. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of N.Y., 447 U.S. 557, 564
(1980).
35. Id.; see discussion infra Part II.B.1.
36. Common sense is the collection of prejudices acquired by age eighteen. David
Robson, Hey Einstein! Common Sense Has Turned Out To Be Quite Uncommon, DAILY
EXPRESS, Apr. 23, 2007, available at 2007 WLNR 7619948 (quoting Albert Einstein).
37. See Charles R. Lawrence III, Forbidden Conversations: On Race, Privacy, and
Community (A Continuing Conversation with John Ely on Racism and Democracy), 114
YALE L.J. 1353, 1391 (2005).
38. See generally Chapman v. United States, 365 U.S. 610, 622 (1961) (Clark, J.,
dissenting).
39. See infra Parts II.B-C, III.A.
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BACKGROUND
state interests that justified its advertising ban: a concern for energy
conservation on the grounds that advertising increased the demand for
energy, and an interest in fairness of rates for consumers. 47
The Court advanced a four-part analysis to measure the validity of the
Commissions interest against the protections of commercial speech. 48
First, the speech must be actually protected by the First Amendment, which
means it must address lawful activity and not be misleading. 49 Second, the
governmental interest in regulating the speech must be substantial. 50 Third,
the regulation must directly advance the asserted governmental interest. 51
Fourth, the regulation should not be more extensive than necessary to serve
the governments interest. 52
In applying this test, the Court first found that the regulations fulfilled
the first two prongs. 53 The Court then analyzed the third prong and
examined the causal relationship between the States interests and the
advertising ban. 54 It first rejected the Commissions interest of rate equity
and efficiency because this concern did not provide a constitutionally
adequate reason for restricting protected speech. 55 The holdings language
indicated hazy parameters of the third causation prong: The link between
the advertising prohibition and appellants rate structure is, at most,
tenuous. The impact of promotional advertising on the equity of appellants
rates is highly speculative. . . . Such conditional and remote eventualities
simply cannot justify silencing appellants promotional advertising. 56 This
47. Id. at 568 ([P]romotional advertising will aggravate inequities caused by the failure
to base the utilities rates on marginal cost . . . . If peak demand were to rise, the absence of
marginal cost rates would mean that the rates charged for the additional power would not
reflect the true costs of expanding production.).
48. See id. at 566.
49. See id.
50. Id. The substantial element of this test is virtually never at issue in subsequent cases
interpreting Central Hudson. See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
507-08 (1981) (It is far too late to contend [a lack of substantial government interest] with
respect to either traffic safety or esthetics.) (citing a string of cases that assert the
substantiality of such interests).
51. Cent. Hudson, 447 U.S. at 566. [T]he regulation may not be sustained if it provides
only ineffective or remote support for the governments purpose. Id. at 564.
52. Id.
53. See id. at 566-69 (deeming that the speech was not inaccurate or related to unlawful
activity, and that the states concern about fair and efficient rates was a substantial
governmental interest).
54. Id. at 569.
55. Id.
56. Id.
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finding, however, was not fatal to the fourth prong analysis since the Court
did find appropriate causation in the energy conservation interest. 57 It held
that the Commissions order directly advanced the States interest in energy
conservation due to the clear connection between advertising and demand
for electricity. 58
Moving on to the final prong addressing the necessary extent of the
regulation, the Court decided that the order improperly reached all
promotional advertising regardless of the impact on the energy use. 59 The
Court declared that the Commission had not shown that the alternative of
using more limited means to regulate the utility would not accomplish the
desired result. 60
This Notes discussion is limited to the Central Hudson evidentiary
standard as implemented through the third prong of the test, that the
regulation must directly advance the State interest. Further explanation of
cases interpreting Central Hudson will be confined to this third prong
addressing causation.
Perhaps the most important decree that emerges from Edenfield is the
Courts reminder of the appropriate scrutiny standard through which
commercial speech should be evaluated. 83 Unlike rational-basis review,
the Central Hudson standard does not permit us to supplant the precise
interests put forward by the State with other suppositions. 84
the Court said, it allowed the government to justify its speech restriction
with reference[s] to studies and anecdotes pertaining to different locales
altogether, or even, in a case applying strict scrutiny, to justify restrictions
based solely on history, consensus, and simple common sense. 93
93. Id. (citations omitted) (quoting Burson v. Freeman, 504 U.S. 191, 211 (1992)). The
Burson plurality upheld under strict scrutiny a statute that prohibited display of campaign
materials within 100 feet of the entrance of a polling place on election day. Burson, 504
U.S. at 211.
94. See infra Part II.C.7.
95. Ibanez v. Florida Dept of Bus. & Profl Regulation, Bd. of Accountancy, 512 U.S.
136, 143 (1994).
96. Id. at 138.
97. Id. The Boards misleading advertising charge against Ms. Ibanez claimed that she
was not practicing public accounting within the regulatory parameters of the Public
Accountancy Act. Id. at 141.
98. See id. at 143 (quoting Zauderer v. Office of Disciplinary Counsel of the Sup. Ct. of
Ohio, 471 U.S. 626, 646 (1985)).
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99. Id. at 148-49. The Board pointed to a regulation in the Administrative Code that
prohibited using a specialist designation unless it was accompanied by a lengthy disclaimer.
Id. at 146. Yet the Court found that the Board still failed to point to any harm that is
potentially real, not purely hypothetical and thus found the action to be unjustified. Id.
100. Id. at 149 (citing Edenfield v. Fane, 507 U.S. 761, 771 (1993)).
101. Rubin v. Coors Brewing Co., 514 U.S. 476, 487 (1995).
102. Id. at 478-79.
103. Id. at 483.
104. Id. at 487.
105. Id.
106. Id.
107. Coors Brewing, 514 U.S. at 489.
108. See id.
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calculated the costs and benefits associated with the burden on speech
imposed by its prohibition. 127 Furthermore, the holding implicates that the
governments purpose to suppress truthful speech creates a particularly
great need for an evidentiary showing. 128
127. Greater New Orleans, 527 U.S. at 188 (quoting Cincinnati v. Discovery Network,
Inc., 507 U.S. 410, 417 (1993)).
128. Joseph A. Wetch, Jr., Broadcasters Come Up All 7s: Advertising of Casinos and
Gambling, Greater New Orleans Broadcasters Association v. United States, 76 N.D. L. REV.
161, 187 (2000) (citing 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 505 (1996)).
129. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 561 (2001). The Court struck down
portions of the regulation under the fourth prong (reasonable fit tailoring) of the Central
Hudson test. Id. Any further discussion of its reasoning under this analysis is irrelevant to
this Note.
130. Id. (internal citation omitted).
131. Id. at 558.
132. Id.
133. Id. at 559.
134. Id. at 560.
135. See Lorillard Tobacco, 533 U.S. at 561.
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136. Id. at 571 (Kennedy & Scalia, JJ., concurring in part) (finding that a third prong
inquiry is not necessary, yet noting that considerable doubt existed as to whether the
prong could be fulfilled); id. at 572-90 (Thomas, J., concurring in part).
137. See id. at 575 (Thomas, J., concurring in part).
138. Id. at 583. For example, Justice Thomas found it counterintuitive that children
were either under five feet tall (the median height for 12-year-olds is five feet) or that they
would not raise their view above eye level. Id. at 582.
139. Id. at 584 (This finding casts some doubt on whether the States interest in
additional regulation is truly compelling.).
140. Thompson v. W. States Med. Ctr., 535 U.S. 357, 373 (2002).
141. Compounded drugs are drugs mixed in pharmacy laboratories to fill doctors
prescriptions for drugs that are not available in standard dosage or form. Todd Zwillich,
Closer Scrutiny Urged for Compounded Drugs, WEBMD HEALTH NEWS, Mar. 24, 2005,
available at http://www.webmd.com/news/20050324/closer-scrutiny-urged-for-
compounded-drugs.
142. Thompson, 535 U.S. at 360.
143. Id. at 363.
144. Id. at 370-71.
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for compounded drugs. 145 It further held that the FDA showed no reason
why advertising alone would be sufficient to prevent compounding from
occurring on a large-scale basis. 146
Nowhere . . . is there any explanation of why the Government
believed forbidding advertising was a necessary as opposed to
merely convenient means of achieving its interests. . . . If the
First Amendment means anything, it means that regulating
speech must be a lastnot firstresort. Yet here it seems to
have been the first strategy the Government thought to try. 147
The explicit concept of the Central Hudson standard as stricter than
minimum rationality review reemerges: Thompson finds that although
Congress could have conceivably enacted the ban to advance its interest
in public health, we have generally only sustained statutes on the basis of
hypothesized justifications when reviewing statutes merely to determine
whether they are rational. 148 The Court reaffirms that the Central Hudson
test is significantly stricter than rational basis, and the government must
not only identify the substantial interest, but also show that the regulation
directly advances the substantial interest. 149
152. See Mauro, supra note 5, at 1951 n.134 (noting that restrictions on lawyer
advertising seem to merit a different standard than traditional commercial speech
restrictions).
153. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 504 (1996) (citing Cent.
Hudson Gas & Electric Corp. v. Pub. Serv. Commn of N.Y., 447 U.S. 557, 566 n.9 (1980)).
154. See infra notes 155-161 and accompanying text.
155. Compare Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995), with Thompson v.
W. States Med. Ctr., 535 U.S. 357 (2002), and Lorillard Tobacco, 533 U.S. 525, and 44
Liquormart, 517 U.S. 484.
156. Compare sources cited supra note 165.
157. See supra text accompanying note 38.
158. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 510 (1981).
159. See Zauderer v. Office of Disciplinary Counsel of the Sup. Ct. of Ohio, 471 U.S.
626, 648 (1985).
160. See Donald W. Garner, Fighting the Tobacco Wars on First Amendment Grounds,
27 SW. U. L. REV. 379, 385 (1998).
161. Id. at 384-85 (footnote omitted).
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162. See Joseph Sanders, The Merits of the Paternalistic Justification for Restrictions on
the Admissibility of Expert Evidence, 33 SETON HALL L. REV. 881, 892 & n.61 (2003)
(First Amendment free speech jurisprudence is an area where anti-paternalistic instincts are
perhaps the strongest.); see also Carpenter, supra note 63, at 650 (emphasizing the hostility
of the First Amendment to paternalistic justifications for speech regulation).
163. See Carpenter, supra note 63, at 650 (emphasis omitted).
164. [T]he Court has never defined paternalism. Id. at 582.
165. See Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002).
166. Id. at 374. However, the governments justification for its restriction was not based
on paternalism. See id. at 370.
167. Id. at 375.
168. See id.
169. Id.
170. See id.
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180. Id.
181. See Rubin v. Coors Brewing Co., 514 U.S. 476, 496-97 (1995) (Stevens, J.,
concurring).
182. See id. at 497.
183. For an example of a proposal to modify the Central Hudson approach to
accommodate some of these principles, see Erin Lenhardt, Note, Why So Glum? Toward a
Fair Balance of Competitive Interests in Direct-to-Consumer Advertising and the Well-
Being of the Mentally Ill Consumers It Targets, 15 HEALTH MATRIX 165, 201-02 (2005)
(advocating a balancing test that focuses on the first Central Hudson prong of
misleading/unlawful communication).
184. See supra text accompanying note 2.
185. See generally Bhagwat, supra note 27.
186. See infra Part III.A-B.
187. See Edenfield v. Fane, 507 U.S. 761, 770-71 (1993).
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188. Compare infra notes 195-197 and accompanying text with notes 198-199 and
accompanying text.
189. See Pagan v. Fruchey, 492 F.3d 766, 772 (6th Cir. 2007); see also infra Part V.A.
190. Pagan, 492 F.3d at 778.
191. Id.
192. 208 F.3d 952, 957 (11th Cir. 2000). A Martindale-Hubbell rating is a peer-based
tiered rating system that serves as an objective indicator of an attorneys skills. Evaluate a
Lawyer with Exclusive Martindale-Hubbell Peer Review Ratings,
http://www.martindale.com/xp/legal/About_Martindale/Products_and_Services/Peer_Revie
w_Ratings/ratings.xml (last visited July 30, 2008). The Florida Bar felt that using such
ratings in advertisements could be misleading. Mason, 208 F.3d at 954.
193. Mason, 208 F.3d at 957 (internal quotation omitted); see also Bailey v. Morales, 190
F.3d 320, 324 (5th Cir. 1999) (holding that Texass explicit concession that it relied on
common sensenot data or empirical evidencefailed the third prong inquiry).
194. Mason, 208 F.3d at 957-58 (citations omitted).
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The First Circuit case El Dia, Inc. v. Puerto Rico Dept. of Consumer
Affairs found an infirmity similar to Pagan with the states failure to offer
any evidence or anecdotes in support of its restriction. 195 The
government regulation required nonresidents to post a bond to advertise in
Puerto Rico, but did not require residents to post the bond. 196 This did not
withstand Central Hudson scrutiny because no record existed of any
resolution or adjudication requiring execution of a bond posted by a
nonresident advertiser . . . . Plainly, [the government] has failed to
demonstrate that the harm it seeks to avoid with [the regulation] is real. 197
On the other hand, a regulation unsupported by any testimony that the
activity of bail bondsmen solicitation actually caused a problem was still
upheld by the Fifth Circuit under the third prong. 198 Pruett v. Harris
County Bail Bond Bd. said that the inherent dangerousness and problems
caused with bail bondsmen soliciting potential customers on the basis of an
outstanding warrant directly advanced the state interest in preventing the
flight of offenders, preserving evidence, and safety. 199
Two phone surveys of more than 500 individuals indicating perceived
problems with professional advertising were sufficient for the Eleventh
Circuit to uphold the third prong in Borgner v. Brooks. 200 Also, in an
entirely different case, 201 a 106-page study, affidavits from two prominent
individuals in the community, newspaper articles, and statistics about the
number of car crashes were adequate for the Sixth Circuit in Chambers v.
Stengel to sustain third prong scrutiny of a thirty-day, post-accident
prohibition on attorney solicitation. 202
195. El Dia, Inc. v. Puerto Rico Dept. of Consumer Affairs, 413 F.3d 110, 116 (1st Cir.
2005) (quoting Florida Bar v. Went for It, Inc., 515 U.S. 618, 628 (1995)).
196. See id. at 112.
197. See id. at 116; see also Pearson v. Edgar, 153 F.3d 397, 402 (7th Cir. 1998) (finding
no evidence that blockbusting, a panic tactic used by real estate agents to scare
homeowners into selling, is a problem in Illinois).
198. See Pruett v. Harris County Bail Bond Bd., 499 F.3d 403, 411 (5th Cir. 2007). The
court identifies this as the second prong of the Central Hudson test, but for reasons stated in
supra note 9, this Note refers to it as the third prong.
199. Id. at 411. The court ultimately rejected the restriction under the fourth prong due to
the availability of other means the government could use to further its interests. Id. at 412-
13. The court identifies this as the third prong of the Central Hudson test, but for reasons
stated in supra note 9, this Note refers to it as the fourth prong.
200. See Borgner v. Brooks, 284 F.3d 1204, 1212 (11th Cir. 2002). Survey data is
certainly one way to prove the existence of an identifiable harm. Id. at 1211.
201. Kentucky used the exact same 106-page study that the Florida Bar initially asserted
in Florida Bar v. Went for It, Inc. Chambers v. Stengel, 256 F.3d 397, 404 (6th Cir. 2001);
see supra Part II.B.3.
202. See Chambers, 256 F.3d at 404, see also Moore v. Morales, 63 F.3d 358, 362 (5th
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Cir. 1995) (finding extensive evidence of a great number of complaints against direct mail
solicitation by attorneys within thirty days of an accident); Missouri v. Am. Blast Fax, Inc.,
323 F.3d 649, 654 (8th Cir. 2003) (rejecting the need for empirical studies and finding that
hearings and testimony about the problem, as well as other cases that highlighted the
problem, were adequate to fulfill the third prong); Walraven v. N.C. Bd. of Chiropractic
Examrs, 273 Fed. Appx. 220, 225 (4th Cir. 2008) (holding that a 90-day prohibition on
chiropractors from contacting victims of motor vehicle accidents was supported by
affidavits, exhibits, and testimony).
203. 550 F.3d 42, 59 (1st Cir. 2008). The court identifies this as the second prong of the
Central Hudson test, but for reasons stated in supra note 9, this Note refers to it as the third
prong.
204. Id. at 58.
205. Id.
206. Id. at 55, 57 (citing Edenfield v. Fane, 507 U.S. 761, 770 (1993)).
207. See infra notes 208-16 and accompanying text.
208. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of New York, 447 U.S. 557
(1980).
209. See Penn Adver. of Baltimore, Inc. v. Mayor & City Council of Baltimore, 63 F.3d
1318, 1325 (4th Cir. 1995) (allowing communities to take minor steps to resolve problems,
even when they cannot conclusively assure the success of their efforts); Anheuser-Busch,
Inc. v. Schmoke, 63 F.3d 1305, 1314 (4th Cir. 1995) (finding that the government does not
need to conclusively prove that the steps undertaken will solve the problem); see infra Part
V.B.
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220. Compare Penn Adver. of Baltimore, Inc. v. Mayor & City Council of Baltimore, 63
F.3d 1318, 1325 (4th Cir. 1995), with Pitt News v. Pappert, 379 F.3d 96, 101 (3d Cir. 2004).
221. See, e.g., Carpenter, supra note 63, at 599 (explaining that a regulation to protect
traffic safety might be paternalistic, but that the Court held it was not because the
prohibition did not extend to communicative aspects of speech).
222. See Anderson v. Treadwell, 294 F.3d 453, 464 (2d Cir. 2002); see also Bland v.
Fessler, 88 F.3d 729, 733 (9th Cir. 1996).
223. Anderson, 294 F.3d at 464.
224. See Pearson v. Shalala, 164 F.3d 650, 655 (D.C. Cir. 1999).
225. Id. at 651.
226. Id. at 655 (emphasis omitted).
227. See id. The court found that the FDAs alternative justification, that customers could
not independently identify the health claims, was more convincing. Id.
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228.See Valley Broad. Co. v. United States, 107 F.3d 1328, 1330 (9th Cir. 1997).
229.See id. at 1332.
230.Id.
231.Assn of Natl Advertisers, Inc. v. Lungren, 44 F.3d 726, 734 (9th Cir. 1994).
232.Id. (citations omitted).
233.See id. at 736-37.
234.See generally SHINER, supra note 29, at 242 (noting that paternalism is adverse to
American values of autonomy and liberty).
235. Carpenter, supra note 63, at 650.
236. See supra text accompanying notes 228-230.
237. Carpenter, supra note 63, at 651.
238. See supra text accompanying notes 26-32.
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ANALYSIS
burden to establish a prima facie case of racial discrimination; 247 (2) the
burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the employees rejection; 248 and (3) the
complainant has an opportunity to show that the employers stated reason
for his or her rejection was a mere pretext. 249 In short, [the complainant]
must be given a full and fair opportunity to demonstrate by competent
evidence that the presumptively valid reasons for his rejection were in fact
a stet for a racially discriminatory decision. 250
Drawing from this framework, the material evidence test implements
a shifting of the burdens. 251 Unlike McDonnell Douglas, the first burden on
the plaintiff is instead on the government because [t]he party seeking to
uphold a restriction on commercial speech carries the burden of justifying
it. 252 This invariably falls upon the government in First Amendment cases,
and thus constitutes the governments initial burden. 253 Next, the burden in
the material evidence test shifts to the individual challenging the
restriction (usually the plaintiff) to show that the governments reasoning
for its restriction is actually a pretext for controlling undesirable conduct by
restricting speech. 254 In other words, the procedural framework of this test
would allow the plaintiff to claim that the restriction is paternalistic, instead
of the court itself determining from precedent and its own views whether
the restriction is paternalistic. 255 Finally, if the plaintiff has met the burden
of showing pretext/paternalism, the government now has the burden to
show that its regulation is not paternalistic and thus has no pretext for
enacting the restriction. 256
257. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) (stating that
even after the plaintiff can show a prima facia case for discrimination, and the employer can
show a legitimate reason for the employees rejection, the final burden falls back on the
plaintiff to show that the reasons the employer gave for termination are pretextual).
258. Cf. William E. Lee, Manipulating Legislative Facts: The Supreme Court and the
First Amendment, 72 TUL. L. REV. 1261, 1319-20 (1998) (finding that the importance of
commercial speech cannot be achieved through the flexibility of the Courts treatment of
legislative facts); see also infra note 277.
259. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of N.Y., 447 U.S. 557,
564 (1980).
260. See infra Part IV.B.
261. See Garner, supra note 160, at 385 (requiring proof at a full evidentiary trial could
expose the courts to an impressive body of social science research and expert testimony).
In a Canadian case, the trial judge found no connection between advertising and tobacco use
even after a thirteen-month trial with 28 witnesses, 560 exhibits and 10,819 pages of
transcribed evidence. Id. at 386.
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262. Pagan v. Fruchey, 492 F.3d 766, 773 (6th Cir. 2007).
263. See Grant v. Meyer, 828 F.2d 1446, 1463 (10th Cir. 1987); Pagan, 492 F.3d at 771.
264. Edenfield v. Fane, 507 U.S. 761, 770-71 (1993).
265. BLACKS LAW DICTIONARY 1276 (8th ed. 2004).
266. See infra notes 267-275 and accompanying text.
267. See Ibanez v. Florida Dept of Bus. and Profl Regulation, Bd. of Accountancy, 512
U.S. 136, 148 (1994).
268. See Rubin v. Coors Brewing Co., 514 U.S. 476, 489 (1995).
269. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 505 (1996).
270. See Greater New Orleans Broad. Assn, Inc. v. United States, 527 U.S. 173, 190
(1999).
271. See Thompson v. W. States Med. Ctr., 535 U.S. 357, 373 (2002).
272. Greater New Orleans, 527 U.S. at 188 (quoting Cincinnati v. Discovery Network,
Inc., 507 U.S. 410, 417 (1993)).
273. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 561 (2001).
274. See Thompson, 535 U.S. at 373.
275. Cf. Florida Bar v. Went for It, Inc., 515 U.S. 618, 628 (1995) (quoting Burson v.
Freeman, 504 U.S. 191, 211 (1992)) (Kennedy, J., concurring). Compare the evidence in
other legal contexts that is adequate to satisfy a partys burden. See, e.g., Perry M. Adair,
Can You Hear Me Now?: Substantial Evidence Under the Telecommunications Act of
1996A Closer Look at Linet v. Wellington, 36 STETSON L. REV. 437, 440 (2007) (internal
citation and quotation omitted) (defining substantial evidence as more than a mere scintilla
but less than a preponderance).
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Id.
293. Metromedia, 453 U.S. at 510.
294. Id.
295. See id. at 529 (Brennan, J., concurring).
296. Id. at n.7. [T]he [city] has presented no evidence, and it is not immediately apparent
as a matter of experience, that [billboards] pose[] problems . . . more significant than those
associated with various permitted uses; nor does it appear that the [city] has arrived at a
defensible conclusion that unusual problems are presented by [billboards]. Id. at 530
(quoting Schad v. Borough of Mount Ephraim, 452 U.S. 61, 73 (1981) (second, fourth, and
fifth alterations in original).
297. See supra text accompanying notes 15-21.
298. See Lee, supra note 258, at 1282.
299. See id. (quoting United States v. Edge Broad. Co., 509 U.S. 418, 434 (1993)). See
supra Part IV.A.
300. Cf. supra note 248 and accompanying text.
301. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). The basic principles
of relevancy in the evidentiary context should be applied. See, e.g., FED. R. EVID. 401, 402.
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302. See C. Edwin Baker, Paternalism, Politics, and Citizen Freedom: The Commercial
Speech Quandary in Nike, 54 CASE W. RES. L. REV. 1161, 1163-64 (2004).
303. See supra note 27 and accompanying text.
304. See supra note 25 and accompanying text.
305. This provides the court with additional evidence on which it can base its holding,
further mitigating the problems of the evidentiary issues by providing some quantum of
evidence and clearing the hurdle of the prohibited common sense allowance.
306. See Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L. REV.
1, 50 (2000).
307. See, e.g., Wilson Huhn, Scienter, Causation, and Harm in Freedom of Expression
Analysis: The Right Hand Side of the Constitutional Calculus, 13 WM. & MARY BILL RTS. J.
125 (2004). The right hand side of the constitutional calculus is the proof of harm that the
government must prove to justify a law restricting expression or speech. Id. at 127.
308. Id. at 125-26.
309. See supra Part IV.B.
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324. See Pagan v. Fruchey, 492 F.3d 766, 771 (6th Cir. 2007).
325. See id. at 774-78.
326. See Village of Glendale v. Pagan, 128 S. Ct. 7111 (2007). This Court should
clearly state that Metromedias application of Central Hudsons third prong to signs is still
good law: common-sense judgments of local lawmakers can establish that an ordinance
directly advances substantial governmental interests in traffic safety and aesthetics unless
they are unreasonable. Petition for Writ of Certiorari, Village of Glendale, 128 S. Ct. 7111
(2007) (No. 07-420), available at 2007 WL 2813938.
327. See Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1313-16 (4th Cir. 1995),
vacated, 517 U.S. 1206 (1996).
328. Pagan v. Fruchey, 492 F.3d 766, 769 (6th Cir. 2007).
329. Id.
330. Id.
331. Id. at 769-70.
332. See id. at 771.
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prong, and the court held that Glendale did not show enough proof of harm
to uphold its ordinance under constitutional scrutiny. 333 The only evidence
the city asserted was an affidavit from Police Chief Matt Fruchey that
stated the objective of the ordinance was to prohibit attractions or
activities which will induce people to come into the roadway who are not a
part of normal vehicular or pedestrian traffic, such as . . . individuals who
are looking over a motor vehicle which is displaying a for sale sign parked
on the street. 334
The court looked to Edenfield for the governments standard to show
causation. 335 Edenfield requires something more than mere speculation or
conjecture to satisfy the governments burden; accordingly, Glendale had
to demonstrate that its restriction would materially alleviate real harm. 336
The court interpreted this to mean that the government must show some
quantum of evidence, beyond its own belief in the necessity of regulation,
that the harms it seeks to remedy are concrete and that its regulatory regime
advances the stated goals. 337
According to the court, the sole piece of evidence presented by
Glendale to show its interestthe affidavitfailed to meet this
requirement. 338 Applying Central Hudson, the court found that bald
assertions and an absence of evidence of real harm prevented the state from
showing that its speech restriction had any connection to further its asserted
interests. 339 The court held that the reasons for requiring more than a
minimal showing derived from the intermediate scrutiny afforded to
commercial speech. 340 This level of scrutiny, the court said, forces the
government to put forth sufficient evidence to develop a basis for
concluding that Glendales legislative decision is animated by reasoned
judgment and not hostility toward particular speech. 341 Finally, the court
justified its heightened third-prong standard with a policy argument that the
CONCLUSION
A legislature that carefully calculates the costs of its restriction on
commercial speech 366 and supports those calculations with non-
hypothesized, concrete, and reasonable justifications 367 can prevent courts
from confronting the separation of powers tension that forms the
undercurrent of commercial speech. This quintessential horizontal
separation debate emerges when either the legislature is granted an
unrestricted and free hand to develop laws or the judiciary excessively
359. The some quantum standard may still be vague and permit manipulation, but
removing common sense takes at least a small step closer to more concrete guidelines for
the third prong.
360. See supra Part IV.C.
361. See Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1308 (4th Cir. 1995).
362. See Carpenter, supra note 51, at 650.
363. See supra Part IV.D.
364. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 572 (2001) (Thomas, J.,
concurring).
365. Id.
366. See supra text accompanying note 127.
367. See supra text accompanying note 148.
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368. [A]n overly rigid commercial speech doctrine will transform what ought to be a
legislative or regulatory decision about the best way to protect the health and safety of the
American public into a constitutional decision prohibiting the legislature from enacting
necessary protections. Thompson v. W. States Med. Ctr., 535 U.S. 357, 389 (2002) (5-4
decision) (Breyer, J., dissenting).
369. See Thompson, 535 U.S. at 373.
370. See supra Part I.
371. See supra Part V.
372. See, e.g., Intl Dairy Foods Assn v. Amestoy, 92 F.3d 67, 71 (2d Cir. 1996) (noting
that burdensome requirements on FDA disclosure could chill commercial speech).
373. See supra text accompanying note 167.