S.O.U.N.D. Advice for addressing commercial speech issues on Constitutional Law questions:
Remember: Commercial speech now merits protection, but not as much as protected non-commercial speech. Apply the following methodology:
1. First, ask: is it commercial speech? There are four types that can be identified:
i. Advertisement of illegal activities – no protection
ii. False and deceptive advertising – no protection
iii. True advertising that inherently risks becoming false or deceptive – government may regulate
iv. Laws that limit commercial advertising to achieve other goals such as enhancing the image of lawyers, or decreasing consumption of alcohol or tobacco, etc. – Supreme Court generally does not allow government regulation here.
2. Then, apply the Central Hudson Test:
1. For commercial speech to merit First Amendment protection it must concern lawful activity and not be misleading. Is it?
2. Is the governmental interest substantial?
3. Does the regulation directly advance the governmental interest asserted?
4. Is the regulation more extensive than is necessary to serve that interest (not least restrictive alternative analysis)?
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