Advertising and the First Amendment: A Practical Test for Distinguishing Commercial Speech from Fully Protected Speech

Because of the substantially greater amount of regulation that is allowed under the First Amendment for commercial speech compared with fully protected speech, it is important to be able to distinguish between the two consistently, correctly, and simply. This task is complicated by the increasing merging of traditional product advertising and corporate image advertising. The author reviews what little guidance the Supreme Court and commentators have provided on making this distinction and then proposes a simple method for accomplishing this task. If people are likely to be influenced by the speech in their role as consumers of goods and services, the speech should be deemed commercial. If they are likely to be influenced in their capacity as members of the electorate, or in some other nonconsumer capacity, the speech should be considered fully protected. This model can be readily applied by marketing managers and is consistent with Supreme Court cases.