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Commercial speech is also widely recognized to have lesser First Amendment protection than personal, political, or ideological speech, and there are cases of advertisers losing in court, c.f. Spann v J.C. Penney, as well as decisions that explicitly limit the First Amendment protections of commercial speech.

Trying to ban all advertising of course wouldn’t get anywhere (especially under the current SCOTUS), and the article’s author clearly hasn’t really thought through the implications. But there is a legal door that is ajar, in the Central Hudson test, and could potentially be widened by arguing that some classes of today’s advertising are against the public interest; the First Amendment is already not blanket covering all commercial speech.




There is no conceivable Supreme Court configuration that would uphold a ban on advertising.

Meanwhile, even the original Central Hudson test --- if commercial speech concerns lawful activity and isn't misleading, the government (1) needs a substantial interest and (2) must narrowly tailor the restriction --- was inhospitable to the sentiment in this blog post. But Central Hudson has as I understand it gotten more restrictive, not less; for instance, Sorrell, which was a bipartisan decision, applies heightened scrutiny to regulations under Central Hudson.

You can keep cigarette ads out of Highlights for Kids. But you're not going to be able to keep Nike from buying up ad inventory, and you'll certainly not be able to regulate political and cause advertising (and "propaganda").


Oh I totally agree, a blanket ban on advertising isn’t remotely realistic, ever. It’s a silly idea, and I doubt what most people want. I’m just sayin’ the Central Hudson test makes commercial speech less protected than, say, political rants, and it could in theory be used to reduce protections, even if that’s not happening right now. Either way, banning ads and free speech protections are two somewhat separate issues, ads could be legal without having any free speech status.




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