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AFP Foundation seeks to limit use of commercial speech doctrine to evade meaningful judicial review

Sep 29, 2021 by Cindy Crawford

Which one of these signs merits full First Amendment protection: a billboard providing the address of the nearest 24-hour urgent care provider or a billboard exhorting the reader to “Vote No on 15”? If you answered “both” then you’ve identified an anomaly in First Amendment jurisprudence, which would categorize the first example as “commercial speech” and give it less protection as if it somehow had lower value to the reader or the speaker.

Americans for Prosperity Foundation (AFPF) recently filed an amicus brief in the Supreme Court in support of Reagan National Advertising, which is trying to resolve this problem.

The case asks the Court to decide whether the sign code of Austin, Texas, which permits the digitization of signs that advertise activities on the premises but prohibits the digitization of other signs, violates the First Amendment. The issue exists because the sign code determines whether a sign is off-premise or on-premise based on the content of the sign, which should subject the regulation to strict scrutiny.

But this case exposes a greater issue: the growing dichotomy between the treatment of commercial speech and noncommercial speech, with the former subject only to intermediate scrutiny and the latter subject to strict scrutiny — a difference in standard that can be dispositive in many cases.

AFPF asks the Court to resolve the growing gap in First Amendment protection and clarify that, under Reed v. Town of Gilbert, any content-based regulation — including a regulation that requires content to be evaluated before the commercial/ noncommercial distinction can be made — must be subject to strict scrutiny.

The brief argues, “Whether commercial speech distinctions can survive Reed presents a paradox arising from the presumption that government can tell whether content is commercial without actually looking at it. This presumption only ever made sense if one had independent knowledge that the speaker was engaged in regulable business activity such that the associated speech was part of that activity.”

That is to say, if an actor was engaged in identifiable commercial activity, then speech inherent to that activity could be deemed commercial without having to evaluate the content of the speech itself. But, like Austin’s content-based definition of off-premise, the commercial speech doctrine has been used to circumvent the straightforward rule of Reed to promote the fiction that speech can be read or heard, then categorized as commercial or noncommercial, without actually relying on the content and triggering strict scrutiny.

While the case here turns on whether certain “off-premise” billboards can be digitized, the AFPF amicus brief showed that meaningful resolution of the case will clarify that the only speech subject to the lesser commercial speech doctrine is speech inherent to a commercial activity that can be identified as such without analysis of its content. Otherwise, strict scrutiny must apply.

Our full amicus brief can be viewed here.