Recent Court Cases have Major Implications for Advertisers – Part 1

October 30, 2015

The First Amendment is the ultimate safety net for the marketing community. Since 1976, advertising has been afforded strong constitutional protection in a series of decisions handed down by the U.S. Supreme Court. In the landmark Central Hudson case in 1980, the Court set out a four-part test to determine when restrictions on commercial speech violate the First Amendment. This test has been used in the intervening years to strike down numerous laws and regulations that impinge on the First Amendment rights of advertisers and marketers. In fact, in 2003’s Western States decision, the Court held that any restrictions on speech must be a “last – not first – resort.” This and subsequent blog posts will provide details on several key cases from 2015.

Reed v. Town of Gilbert, Arizona
The U.S. Supreme Court issued a unanimous decision on June 18 that could have very significant implications for the level of First Amendment protection that advertising enjoys. The Court struck down a town sign ordinance that had different rules and standards for signs that could be displayed, based on the type of event and the content of the sign. While the ordinance could likely have been struck down under existing First Amendment principles, the Court held that the content-based law was subject to a higher standard of “strict scrutiny.” That standard requires the government to prove that the challenged law is “narrowly tailored to serve compelling state interests.”  

This is a higher standard than has traditionally been applied in commercial speech cases. In previous cases, the Court has held that laws were content-based if they were passed to suppress speech with which the government disagreed. Here, the Court seemed to say that any law that singles out a topic for regulation and discriminates based on content is presumptively unconstitutional. Legal scholars are debating the potential scope of the decision and its impact on various forms of government regulation of speech. While she supported the result, Justice Kagan wrote a separate opinion warning that when lower courts apply the Supreme Court’s sweeping decision to review various sign laws across the country, the Supreme Court will “find itself a veritable Supreme Board of Sign Review.” Nevertheless, certainly for now, this case appears to give strengthened tools for advertisers to defend the First Amendment rights of commercial speakers.

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