Wednesday, July 18, 2012

MBE Fast Fact: Commercial Speech

In Constitutional Law, along with the the different levels of scrutiny (strict, intermediate, rational basis), there are also a number of similar tests that will need to come to mind when taking the exam. One such test is the test to determine whether a law that burdens commercial speech is constitutional.

Commercial speech is afforded First Amendment protection, but it's essential that an initial determination be made as to whether the speech is misleading or fraudulent. If so, then the very lowest standard (on par with rational basis scrutiny) will be applied, and any law burdening such speech will likely be upheld.

If, however, a law attempts to burden commercial speech that is truthful, such a law is very unlikely to be upheld. Such a law will only be upheld if the law (1) serves a substantial government interest; (2) directly advances that interest; and (3) is narrowly tailored to serve that interest. All three elements need to be analyzed in determining whether the law attempting to burden non-misleading commercial speech is constitutional. For purposes of the bar exam, it's very safe to assume that complete bans on truthful commercial speech will not be upheld.

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