Is Commercial Speech on the Internet Protected Under the First Amendment?

Commentary: It seems like a simple question. Is commercial speech on the Internet protected under the First Amendment to the Constitution of the United States? Unfortunately, before answering it, we must ask a more complicated one: just what is “commercial speech”?

Most people would say that commercial speech involves matters relating to commerce, such as advertisements. However, often web sites and blogs mix advertisements (such as promotional information about the company that runs the site or blog) with hard information (such as newsfeeds or, as in the blog you are reading, legal commentary). In fact, one might argue that one of the appeals of the World Wide Web to advertisers is that mixing the advertisements with the useful information or other content attracts potential buyers who spend time looking at the website and thereafter, might want to purchase the advertised products or services. Put another way, it is far more likely that someone will view an advertisement that is bundled with compelling nonadvertising content.

The United States Supreme Court has yet to completely grapple with this issue of mixed use Internet speech. However, it has set forth the concept that the government generally does not violate the First Amendment when it regulates commercial speech in the form of advertising. Bigelow v. Virginia, 420 U.S. 809 (1975). Also, the Supreme Court has made it clear that there is an enhanced protection for noncommercial speech that is mixed with commercial speech (such as advertising). Bolger v. Youngs Drug Corp., 463 U.S. 60 (1983). Hence, the key issue is the extent to which the First Amendment protections that are afforded to citizens of the United States generally will also apply to speech meant to further commercial interests.

Unfortunately, the unique aspects of speech involving web sites or blogs has not been squarely addressed by the Supreme Court. There is reason to believe that commercial speech on the Internet might be handled differently by the Court than other commercial speech given such unique factors as: (a) the viral nature of Internet speech resulting in the fact that the poster does not always control where the information will be posted; (b) the fact that there are special statutory immunities that apply for web sites that serve as forums for speech (so long as they do not editorialize or otherwise inject themselves into the substance of the postings); and (c) the practical difficulty of separating what is and is not Internet commercial and non-commercial speech.

While other lower federal courts have addressed these issues, only time will tell if the Supreme Court is willing to carve out such an exception.

Comments/Questions: ljm@gdnlaw.com

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