492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989)
The State University of New York adopted Resolution 66-156 in 1979.1 This measure bars private commercial enterprises from operating on SUNY campuses or in university facilities, with exceptions only for food, legal beverages, campus bookstores, vending, linen supply, laundry, dry cleaning, banking, barber and beautician services, and cultural events.2
American Future Systems, Inc. sells housewares such as china, crystal, and silverware to college students exclusively through Tupperware-style parties.3 These events involve demonstrations and sales offers to groups of ten or more prospective buyers assembled by a host or hostess who receives a bonus or reward.4 In October 1982, an AFS representative conducted such a demonstration in a student's dormitory room at the Cortland campus.5 Campus police directed her to leave, and upon her refusal arrested her on charges of trespass, soliciting without a permit, and loitering.6
Respondent Fox and several fellow SUNY/Cortland students sued the university's board of trustees in federal district court for a declaratory judgment.7 They claimed that the resolution violated the First Amendment by prohibiting them from hosting and attending AFS demonstrations and from meeting with other commercial invitees in their rooms.8 AFS joined the suit as a plaintiff.9 The district court granted a preliminary injunction in 1983 but, following a trial, entered judgment for the university in 1986.10 A divided Second Circuit panel reversed and remanded in 1988.11
The Supreme Court granted certiorari later that year.12 AFS had by then withdrawn from the case, leaving only the students as respondents.13 On the same day certiorari was granted, the district court issued a decision on remand striking down the resolution.14 The parties then stipulated to stay all further proceedings pending Supreme Court action.15 University officials testified that the resolution prohibits paid tutoring, legal advice, medical consultations, and job counseling in dormitory rooms.16
Whether the AFS Tupperware party demonstrations constitute commercial speech or instead involve speech that is inextricably intertwined with noncommercial elements?17
Commercial speech is expression that proposes a commercial transaction.18 Speech containing both commercial and noncommercial elements is not inextricably intertwined unless the law requires their combination, in which case the level of scrutiny depends on the nature of the speech taken as a whole.19
Yes. The AFS demonstrations propose a commercial transaction in the sale of housewares to college students through group presentations.20 The noncommercial elements such as discussions of financial responsibility and efficient home management are not required by any law to be combined with the sales pitch.21 Nothing prevents the speaker from conveying or the audience from hearing those messages separately.22
The presentations remain commercial speech because including home economics elements no more converts them into educational speech than opening a sales presentation with a prayer would convert it into religious speech.23 The resolution does not prohibit separate noncommercial messages, confirming that the speech at issue proposes a commercial transaction and is therefore subject to the Central Hudson analysis.24
The AFS Tupperware party demonstrations constitute commercial speech.25
Whether governmental restrictions on commercial speech must employ the least restrictive means to serve the asserted interests?26
No. Although some prior formulations suggested a least-restrictive-means test, the proper inquiry requires only a fit that is reasonable and in proportion to the interest served.29 The inquiry employs a means narrowly tailored to achieve the objective rather than the single best or least severe disposition.30
The Court of Appeals therefore erred by instructing the District Court to apply a least-restrictive-means standard on remand.31 The asserted interests in promoting an educational atmosphere, safety, and residential tranquility on campus can be evaluated under the more flexible reasonable-fit standard that accounts for the subordinate position of commercial speech in the scale of First Amendment values.32
Governmental restrictions on commercial speech need not employ the least restrictive means to serve the asserted interests.33
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Justice Blackmun would have preferred to leave the least-restrictive-means question to another day rather than recast contrary language from past cases.34 He viewed the majority's revision of precedents as unnecessary because the overbreadth claim provided a narrower ground for decision.35 That ground would avoid chilling protected speech during remand proceedings.36
The majority concedes that it must repudiate the Court's repeated assertion that regulation of commercial speech may be not more extensive than is necessary to serve a substantial governmental interest.37
Whether Resolution 66-156 is substantially overbroad because it reaches fully protected noncommercial speech such as paid tutoring and professional consultations?38
A statute is substantially overbroad if its impermissible applications to protected noncommercial speech are substantial in relation to its plainly legitimate sweep, permitting facial invalidation even when some applications may be valid.39
Yes. University officials testified that the resolution prohibits paid tutoring, legal advice, medical consultations, and job counseling in dormitory rooms. These activities constitute fully protected noncommercial speech uttered for profit but not proposing a commercial transaction.40
The resolution reaches these forms of speech because it bars any invited speech where the end result is the intent to make a profit by the invitee.41 The overbreadth is substantial because the measure makes no effort to distinguish commercial from noncommercial speech and sweeps far more protected expression than is tolerable under the First Amendment.42
Resolution 66-156 reaches substantially overbroad applications to noncommercial speech.43
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Justice Blackmun concluded that the resolution is substantially overbroad on its face.44 He noted that a public university cannot categorically prevent fully protected expressive activities such as music lessons, art instruction, or professional consultations from occurring in a student's dorm room.45 The broad reach cannot be squared with the First Amendment even assuming the university may prohibit all commercial speech.46
The resolution's overbreadth is undoubtedly substantial in relation to whatever legitimate scope the resolution may have.47
Whether an overbreadth challenge should be resolved before determining the validity of the resolution as applied to the commercial speech at issue?48
No. The overbreadth question is ordinarily more difficult to resolve than the as-applied challenge and requires determination whether the overreach is substantial judged in relation to the statute's plainly legitimate sweep.51 For reasons of judicial economy and proper functioning of courts, the validity of the law as applied to the commercial speech should be decided first.52
The Court therefore declined to resolve the overbreadth issue here because neither the District Court nor the Court of Appeals had separately addressed the commercial and noncommercial applications.53 A holding for respondents on overbreadth would have produced more relief than the remand ordered below.54
An overbreadth challenge should not be resolved before determining the validity of the resolution as applied to the commercial speech at issue.55
Related opinions on this issue
Justice Blackmun would have resolved the overbreadth challenge immediately to avoid a substantial revision of commercial-speech precedents.56 He noted that the Court has often felt free to decide overbreadth before as-applied challenges when doing so provides a narrower ground.57 The specific question of this resolution's overbreadth was less sweeping than the general least-restrictive-means issue.58
The omission of a cross-petition is not a jurisdictional barrier and is outweighed by the opportunity the overbreadth claim affords to avoid a substantial revision of the Court's precedents in the area of commercial speech.59 He viewed the majority's revision of precedents as unnecessary because the overbreadth claim provided a narrower ground for decision that would avoid chilling protected speech during remand proceedings.60