500
Opinion of Stevens, J.
Five Members of the Court recognized that the state interest in the conservation of energy was substantial, and that there was "an immediate connection between advertising and demand for electricity." Id., at 569. Nevertheless, they concluded that the regulation was invalid because respondent commission had failed to make a showing that a more limited speech regulation would not have adequately served the State's interest. Id., at 571.9
In reaching its conclusion, the majority explained that although the special nature of commercial speech may require less than strict review of its regulation, special concerns arise from "regulations that entirely suppress commercial speech in order to pursue a nonspeech-related policy." Id., at 566, n. 9. In those circumstances, "a ban on speech could screen from public view the underlying governmental policy." Ibid. As a result, the Court concluded that "special care" should attend the review of such blanket bans, and it pointedly remarked that "in recent years this Court has not approved a blanket ban on commercial speech unless the expression itself was flawed in some way, either because it was deceptive or related to unlawful activity." Ibid.10
9 In other words, the regulation failed the fourth step in the four-part inquiry that the majority announced in its opinion. It wrote:
"In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." Central Hudson, 447 U. S., at 566.
10 The Justices concurring in the judgment adopted a somewhat broader view. They expressed "doubt whether suppression of information concerning the availability and price of a legally offered product is ever a permissible way for the State to 'dampen' the demand for or use of the product." Id., at 574. Indeed, Justice Blackmun believed that even
Page: Index Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 NextLast modified: October 4, 2007