In our last article, we discussed free speech in a corporate setting and the fact that, since corporations are considered individuals for some legal purposes, corporations are entitled to free speech. Of course, there are more exceptions to the rule for commercial speech than non-commercial speech.
Many courts have considered whether corporations have the right to protected speech in a variety of circumstances over the years. In the R.J. Reynolds Tobacco Company, et al. case we discussed in our last article, the case involved a rule imposed by the government requiring tobacco companies to include grotesque images of cancer tissue, in addition to text, on product labels.
This scenario is the reverse of what we normally think of when the right to freedom of speech is invoked. Most often, people complain that their speech is being restricted in some way by government action. In the tobacco case, the tobacco companies challenged the government’s attempt to compel certain speech.
It is just as much a breach of one’s rights for the government to compel speech as it is for the government to restrict speech. For example, courts have held that U.S. citizens cannot legally be compelled to recite the pledge of allegiance.
Certain commercial speech scenarios, however, are excepted from the general rule barring compelled speech. There are two primary exceptions:
- First, “purely factual and uncontroversial” disclosure requirements in commercial speech are permissible if they are “reasonably related to the State’s interest in preventing deception of consumers,” provided the requirements are not “unjustified or unduly burdensome.” Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985).
- Second, for a statute burdening commercial speech to survive, the government must affirmatively prove that:
- its asserted interest is substantial,
- the restriction directly and materially advances that interest, and
- the restriction is narrowly tailored. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980).
The attorneys at Glass & Goldberg provide high quality, cost-effective legal services and advice for clients in all aspects of commercial compliance, business litigation and transactional law. Call us at (818) 888-2220, send an email inquiry to firstname.lastname@example.org or visit us online at www.glassgoldberg.com to learn more about the firm and to sign up for future newsletters.