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Commercial Speech and the Nanny State: Can the Government Control Speech for Our Own Good?

March 28, 2012

Executive Summary

The U.S. Supreme Court and lower federal Courts are handling a number of cases of vital importance to advertisers. Last Term's decision in Sorrell v. IMS Health Inc. established that the First Amendment protects gathering data to craft commercial messages and government efforts to "tilt" the marketplace of ideas are subject to heightened scrutiny. The Court's decision in Brown v. Entertainment Merchants Assn. held that the First Amendment bars efforts to restrict marketing video games to minors. Lower courts are now wrestling with whether the FDA can require lurid graphic warnings on cigarette packages and in advertising. The outcome will determine not just whether tobacco companies can be compelled to vilify their own products, but the extent to which other products and services can be forced to carry the government's messages. Robert Corn-Revere, partner, Davis Wright Tremaine, LLP, and Richard Samp, chief counsel, Washington Legal Foundation, discussed the current state of commercial speech doctrine and how case outcomes may impact the required or allowable messages featured with products and services.

Related handout:


"Commercial Speech and the Nanny State: Can the Government Control Speech for Our Own Good?" Robert Corn-Revere, Partner, Davis Wright Tremaine LLP; Richard Samp, Chief Counsel, Litigation Division, Washington Legal Foundation. ANA Advertising Law & Public Policy Conference, 03/28/12.