United States v. Edge Broadcasting Co., 509 U.S. 418, 9 (1993)

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426

UNITED STATES v. EDGE BROADCASTING CO.

Opinion of the Court

III

For most of this Nation's history, purely commercial advertising was not considered to implicate the constitutional protection of the First Amendment. See Valentine v. Chrestensen, 316 U. S. 52, 54 (1942). In 1976, the Court extended First Amendment protection to speech that does no more than propose a commercial transaction. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976). Our decisions, however, have recognized the " 'common-sense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 455-456 (1978). The Constitution therefore affords a lesser protection to commercial speech than to other constitutionally guaranteed expression. Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 477 (1989); Central Hudson, supra, at 563; Ohralik, supra, at 456.

In Central Hudson, we set out the general scheme for assessing government restrictions on commercial speech. 447 U. S., at 566. Like the courts below, we assume that Edge, if allowed to, would air nonmisleading advertisements about the Virginia lottery, a legal activity. As to the second Central Hudson factor, we are quite sure that the Government has a substantial interest in supporting the policy of nonlottery States, as well as not interfering with the policy of States that permit lotteries. As in Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328 (1986), the activity underlying the relevant advertising—gambling— implicates no constitutionally protected right; rather, it falls into a category of "vice" activity that could be, and frequently has been, banned altogether. As will later be discussed, we also agree that the statutes are no broader than necessary to advance the Government's interest and hence the fourth part of the Central Hudson test is satisfied.

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