The Evolution of Advertising (Commercial Speech) Law For many years the U.S. Supreme Court defined commercial speech as speech that proposes nothing more than an economic transaction. At first this particular type of speech did not receive protection under the First Amendment, and many problems arose over the years from the narrow definition of commercial speech, which the U.S. Supreme Court found it necessary to address and change over time. Such issues that arose are: does the State have the authority to regulate commercial speech? A more fundamental issue, is the intention of profit alone what makes some speech, commercial speech? Lastly, should commercial speech be protected under the First Amendment, and if so, should the protection be conditional? The Supreme Court’s current view on the matter may be traced historically through the evolution of four key cases.
Although prior to 1976 the U.S. Supreme Court’s view was that commercial speech was not protected under the First Amendment, nevertheless, the Supreme Court’s view was altered, after the Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council in 1976, to hold that commercial speech does not sit completely outside of First Amendment protection. Mainly due to the evolution of the interpretation of commercial speech that is derived from the Supreme Court’s ruling over the cases: Valentine v. Chrestensen, New York Times v. Sullivan, Bigelow v. Virginia, and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council. The first case that will be examined will set the baseline that allowed for future deviation, and is Valentine v. Chrestensen, which took place in New York City in 1942. In this case it is clear that an advertisement is commercial speech. Chrestensen owned a U.S. Navy submarine, which he kept in the State harbor, and he charged visitors an admission fee to tour it.