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But, despite the speech-protective outcome of the decision, the Court continued to adhere to its Central Hudson mode of analysis. The Court’s primary rationale for doing so was that the state could have accomplished its asserted objective of reducing temperance by restricting less speech or, indeed, without restricting speech at all. 1495 (1996), the Supreme Court unanimously invalidated Rhode Island’s restrictions on advertising the price of alcohol. (In a later case, this prong of the test was redefined as requiring only that the "fit" between the state's goal and the challenged regulation be "reasonable.")Īpplying this test, the Supreme Court has often arrived at decisions that are extremely protective of commercial speech. Whether the regulation is no more extensive than necessary to serve that interest.Whether the regulation "directly advances" that government interest and.Whether the government interest asserted to justify the regulation is "substantial".Whether the commercial speech concerns a lawful activity and is not misleading.Specifically, under the Central Hudson test, a court must determine: Public Service Commission of New York, 447 U.S. In assessing restrictions on communications that propose a commercial transaction, the Court applies a balancing test that weighs the competing interests of commercial speakers and government regulators. The lack of clarity about the rights of advertisers has also encouraged bureaucrats and politicians to attack the commercial speech of politically unpopular interests – most dramatically tobacco. The Court’s balancing test has produced inconsistent results and sowed confusion in the lower courts. The Supreme Court’s current approach to commercial speech exemplifies the perils of balancing tests, particularly when the right to communicate is at stake.
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