In this article, the Supreme Court's shifting and expanding approach to intermediate scrutiny of commercial free speech under the First Amendment is examined. The author maintains that the Supreme Court has increased the level of review for content-neutral laws regulating commercial speech, while decreasing the level of review of laws affecting the media. The author argues that these analytical shifts have eroded First Amendment protection for the media, replacing the traditional notion that the media is central to a functioning democracy with the view that the press is simply a powerful, commercial enterprise. The author concludes by contrasting two recent Supreme Court cases that reflect the deeply divided court and unclear jurisprudence of current First Amendment doctrines.
Susan Dente Ross,
Reconstructing First Amendment Doctrine: The 1990s (R)Evolution of the Central Hudson and O'Brien Tests,
23 Hastings Comm. & Ent. L.J. 723
Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol23/iss4/3