Should the Government Regulate and Limit Advertisements? Let's talk about it.

As I learn more about the first amendment, I become more fascinated with the varying levels of protection when applying the first amendment to different situations. The right to free speech is a defining feature of our democracy that gets its power from the consent of the governed. Limiting free speech would not only be unconstitutional, but would limit the people’s ability to express their opinions on the government officials they voted for. In 1886, Santa Clara County v. Southern Pacific Railroad Co. gave corporations some of the legal rights of private citizens under the 14th amendment’s equal protection clause. This is known as corporate personhood.

While corporations do not have the same rights pertaining to freedom of speech, the Court expanded the right to free speech to include commercial speech. Commercial speech can be defined as propping commercial transactions and to advertise a corporation’s products or services. There are limits on commercial speech, like freedom of speech for private citizens. Commercial speech is also not immune from government interference. There are a few exceptions. The government does have the right to regulate commercial speech if it is false or misleading. This is done with the Central Hudson test. In Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), the Supreme Court sought to determine the extent of regulating commercial speech without infringing on the company’s first amendment rights.

I created a flowchart below to further explain the test below.

Commercial speech surrounds human beings. Whether it’s an ad in a magazine or a commercial on tv, it is nearly impossible for someone to go about their day without seeing an advertisement. While government agencies like the FDA and FDC regulate packaging and labeling, but the only real regulations for advertisements is the central Hudson test. This begs the question: should the government regulate advertisements more than the Central Hudson test?

While there are limited regulations for certain products like cigarettes and alcohol. There are warning labels, but that is really the extent of regulations. I think with products that have the opportunity to harm minors who may or may have exposure to these advertisements and take a part of the advertised product should be regulated. I remember seeing a lot of commercials for liquor products when I was younger, and as I grew up, I rarely, if ever, see them anymore. This may be because of ad-free streaming platforms like Netflix, but I do not see these commercials whenever a commercial break occurs.

The government should not be responsible for setting limitations on advertisements, that is why other agencies like the FDA and FDC were created. If an advertisement blatantly fails the Central Hudson test, then I would agree with government interference to protect consumers. That should be the extent of government interference. If regulations from the government arise, how far will the government go? When would they stop? These valid and crucial questions may be the reasons for the government's "laissez faire" approach with commercial speech.