Vice Products and Commercial Speech

2012-09-21 15:50:28

‘‘Vice’’ activities tend to be the front line of battles over the freedom afforded Commercial Speech. Societal interests in reducing vice provide a weighty counter to commercial interests.

In 1967, the Federal Communications Commission forced broadcasters to run antismoking commercials, and in the 1980s, Oklahoma’s constitution was challenged because it banned alcohol advertising. These are but two illustrations of how government efforts to protect the public from vice can impinge on speech, both of which played important roles in the evolution of the Commercial Speech doctrine. This evolution, however, is best seen in a few Supreme Court decisions.

Posadas de Puerto Rico v. Tourism Company (1986) declared gambling casino advertising could be regulated because it might cause Puerto Rico’s citizens to gamble, leading to crime, prostitution, and corruption. Justice Rehnquist, writing for the Court, introduced his ‘‘greater-includes-the-lesser’’ argument, positing that the government’s greater power to ban gambling includes the lesser power to ban its advertising.

That logic arguably could be applied to almost any product, but it arose again in U.S. v. Edge Broadcasting (1993), a case about lottery advertising, with a more limited scope. The Court declared that the power to ban a vice included the power to ban its advertising. This later led to Rhode Island arguing Commercial Speech concerning vice products is unprotected, in 44 Liquormart v. Rhode Island (1996), thereby permitting restrictions on alcohol advertising. But in the end the Court rejected that contention, declaring there is no vice exception to the First Amendment.


References and Further Reading

  • Berman, Mitchell N., Commercial Speech and the Unconstitutional Conditions Doctrine: A Second Look at ‘‘The Greater Includes the Lesser,’’ Vanderbilt Law Review 55 (2002): 693–796.
  • Hoefges, Michael, and Milagros Rivera-Sanchez, ‘‘Vice’’ Advertising under the Supreme Court’s Commercial Speech Doctrine: The Shifting Central Hudson Analysis, Hastings Communication & Entertainment Law Journal 22 (2000): 345–389.
  • Richards, Jef I., Politicizing Cigarette Advertising, Catholic University Law Review 45 (1996): 4: 1147–1212.

Cases and Statutes Cited

  • 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996)
  • Posadas de Puerto Rico Association v. Tourism Company of Puerto Rico, 478 U.S. 328 (1986)
  • U.S. v. Edge Broadcasting, 509 U.S. 418 (1993)

See also 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996); Commercial Speech; Posadas De Puerto Rico Association v. Tourism Company of Puerto Rico, 478 U.S. 328 (1986); Rehnquist, William H.