Valentine v. Chrestensen, 316 U.S. 52 (1942)

Valentine v. Chrestensen is often cited as evidence that for two hundred years the prevailing understanding was that the First Amendment did not apply to ‘‘Commercial Speech.’’ In 1976, that understanding was definitively, and perhaps permanently, changed with the Supreme Court’s decision in Virginia Pharmacy, that ‘‘Commercial Speech’’ was entitled to limited First Amendment protection. But in 1942, when the Court decided Valentine, it seemed self-evident to the Court that although government ‘‘may not unduly burden or proscribe’’ freedom of expression and opinion, ‘‘[w]e are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.’’ Chrestensen owned a former U.S. submarine, which he wanted to dock on the East River and charge a fee to the public for touring. He had an advertising handbill printed up about the ship. The New York police commissioner, Valentine, advised Chrestensen that distributing his handbills would violate a provision of New York City’s Sanitary Code. However, he was also informed that handbills ‘‘devoted to ‘information or a public protest’’’ were exempted from the Code. So Chrestensen had new handbills printed up. On one side was the original information. On the other, a protest against the City Dock Department for refusing him wharfage facilities. The Commissioner restrained distribution of the new handbill as well, and Chrestensen brought suit alleging the restraint violated his rights under the First Amendment. As noted, this claim was summarily dismissed. It would take another thirty-four years before the Court was prepared to systematically revisit the question of First Amendment protection for what later came to be called ‘‘Commercial Speech.’’

TAMARA R. PIETY

References and Further Reading

• Kozinski, Alex, and Stuart Banner, Who’s Afraid of Commercial Speech? Virginia Law Review 76 (1990): 627.
• Post, Robert, The Constitutional Status of Commercial Speech, UCLA Law Review 48 (2000): 1.
• Redish, Martin, The First Amendment in the Market Place: Commercial Speech and the Value of Free Expression, George Washington Law Review 39 (1971): 429.
• Shiner, Roger A. Freedom of Commercial Expression. Oxford: Oxford University Press, 2003.

Cases and Statutes Cited

• Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976)

See also Central Hudson Gas and Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980); Commercial Speech; First Amendment and PACs; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976)