This Note examines the Supreme Court's struggles both in defining commercial speech and identifying the parameters of the commercial speech doctrine. The author analyzes a series of Supreme Court cases and concludes that the doctrine rests on an ill-defined notion of commercial speech and on illusory assumptions regarding the distinctions between commercial speech and more highly protected discourse such as political speech. The author concludes that the Court should abandon the commercial speech doctrine and provide commercial speech the full protections enjoyed by political speech. The Note next outlines President Clinton's and the FDA's recent tobacco advertising regulations and analyzes the regulations under the current intermediate scrutiny standard for commercial speech. This analysis places particular emphasis on recent Supreme Court decisions regarding commercial speech, including 44 Liquormart, Inc. v. Rhode Island. The author concludes that the regulations violate the First Amendment because the government cannot meet its burden of showing that the regulations would directly advance its interests in curbing tobacco use by minors and because there exist various less restrictive means of reaching that purported goal, including counter-advertising, excise taxes, and direct regulation.
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
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol19/iss2/7