The government argues that advertising is “commercial speech” and therefore not afforded the same protections under the First Amendment as every other type of speech. The “commercial speech” doctrine traces back to Valentine v. Chrestensen, an infamous case from the 1940s in which the Court arbitrarily decided commercial advertising wasn’t constitutionally protected. The Court has slowly been hacking away at this arbitrary rule, eventually creating an intermediate protection for commercial speech in under the Central Hudson Gas & Electric Corp. v. Public Service Commission (1980), where courts must balance four factors before deciding whether to nullify a restriction on commercial speech.
The Central Hudson test requires courts to determine: (1) whether the speech is false or misleading, (2) whether the government has a “substantial interest” in regulating the speech at issue, (3) whether the censorship directly advances the government’s interest in regulating the desired object, and (4) whether the government’s speech‐regulation is no more restrictive than necessary. As reasonable as the words may seem in the abstract, the test has sprouted a thicket of arbitrary rulings contrary to the original meaning of the First Amendment.
What exactly qualifies as a “substantial interest” for a government has never been particularly clear. Nor has the Court been able to demonstrate where in the First Amendment some types of speech are afforded greater protections than others. Justices from John Paul Stevens to Clarence Thomas have criticized the Central Hudson test for its arbitrary factors and lack of grounding in the text of the First Amendment.
Our brief argues that alcohol advertising is just as much a form of speech as literature and political speech, deserving of protection from arbitrary government restrictions. The Central Hudson test should be eliminated in favor of the standard First Amendment protection for any kind of speech—which of course isn’t absolute, but is also not subject to government whim.
Despite the “commercial speech” doctrine’s emergence seemingly over night, and that the Central Hudson test still stands after nearly 30 years, Cato once more opposes this impediment to both the freedom of speech and economic liberty in the hope that, as Shakespeare put it in Henry VI, Part III, “many strokes, though with a little ax, hew down and fell the hardest timbered oak.”