Central Hudson Gas and Electric Corp. v. Public Service Commn. New York
447 U.S. 557 (1980)

  • New York was worried that people were wasting electricity and that might lead to fuel shortages. So, they instituted a temporary ban on all advertising that promotes the use of electricity.
  • A few years later, they decided to extend the ban. Central Hudson sued, claiming that the advertising ban was an unconstitutional infringement of their right to free speech under the 1st Amendment.
    • New York argued that the advertisements were unprotected by the 1st Amendment.
  • The US Supreme Court found the New York law to be unconstitutional, and struck it down.
    • The US Supreme Court found that advertising is commercial speech and was due some amount of 1st Amendment protection.
      • However, it is not due complete protection, as is political speech.
    • The Court found that there is a four part test to determining if a restriction on commercial speech is permissible under the 1st Amendment:
      • Is the expression protected by the 1st Amendment?
        • Commercial speech is not covered by the 1st Amendment if it promotes illegal activity or is false advertising.
      • Is there a substantial governmental interest involved?
      • Does the regulation advance the governmental interest?
      • Is the regulation more extensive than is necessary to serve that interest?
    • In this case, the Court found that the New York law was more extensive than necessary to be constitutional.
  • This process for determining whether or not commercial speech can be regulated (known as the Central Hudson Test) is similar to the process used for determining the legality of other infringements of constitutional rights.
    • As a rule of thumb, commercial speech tends to get intermediate scrutiny review.
    • The Court has been inconsistent in how to apply the fourth part of the Central Hudson Test, and has flip-flopped between requiring the regulation to be “the least restrictive means possible” and just being “narrowly-tailored.”