Also known as: directly advance · directly advancing · Central Hudson prong · commercial speech test
Written by attorneys — see sources below.
A requirement in the commercial speech doctrine that a regulation must have an immediate connection to the government's asserted substantial interest rather than being remote or ineffective in achieving it.
Dorothy Daniels owns a power company that wants to run ads encouraging greater electricity use. The state commission bans such promotional advertising to conserve energy. The ban directly advances the interest because reduced advertising immediately lowers consumer demand for electricity.
Darrell Duncan is an attorney who mails personalized offers to recent accident victims. The state bar enforces a thirty-day waiting period before such mailings. The waiting period directly advances the state's interests in protecting victim privacy and the bar's reputation by limiting intrusive contact during a vulnerable period.
Daphne Doyle runs a data mining firm that sells physician prescribing records to pharmaceutical companies for targeted marketing. The state restricts the sale and use of those records. The restriction does not directly advance privacy interests because the state already possesses the same prescribing data and the law leaves other uses untouched.
In 2007 Vermont enacted the Prescription Confidentiality Law, also known as Act 80, whose central provision appears at Vt. Stat. Ann., Tit. 18, §4631(d). The statute prohibits pharmacies, health insurers, electronic transmission intermediaries, and similar entities from selling, licensing, or exchanging prescriber-identifying information, and from permitting its use for marketing prescription drugs, unless the prescriber consents. It likewise bars pharmaceutical manufacturers and marketers from using such information for marketing absent consent. The prohibitions are subject to enumerated exceptions that permit dissemination and use for health-care research, enforcement of insurance formularies, patient care-management communications, law enforcement, and purposes otherwise provided by law. Pharmaceutical manufacturers promote brand-name drugs through a process called detailing, in which sales representatives visit physicians' offices to present information and samples. Pharmacies receive prescriber-identifying information when filling prescriptions pursuant to federal and state requirements and routinely sell that information to data-mining firms. The data miners analyze the records, produce reports on individual physicians' prescribing patterns, and lease the reports to pharmaceutical manufacturers under nondisclosure agreements so that detailers can tailor their presentations. Respondents are three Vermont data-mining companies and the Pharmaceutical Research and Manufacturers of America, an association of brand-name drug manufacturers. They filed two consolidated actions in the United States District Court for the District of Vermont. The suits named the Vermont Attorney General and other state officials as defendants. Respondents sought declaratory and injunctive relief on the ground that §4631(d) violates their First Amendment rights. After a bench trial the district court denied relief. The Court of Appeals for the Second Circuit reversed, holding that the statute unconstitutionally burdens protected speech. The Supreme Court granted certiorari to resolve the conflict with decisions of the First Circuit upholding similar statutes in Maine and New Hampshire. The Vermont Legislature accompanied the statute with formal findings. Detailing often conflicts with state public-health goals. Use of prescriber-identifying data increases the effectiveness of brand-name marketing. The resulting increase in prescriptions of newer, more expensive drugs raises healthcare costs. The Act also funded an evidence-based prescription-drug education program intended to promote therapeutic and cost-effective prescribing.
View caseDeanna Davenport is a lawyer who advertises contingency-fee services without listing the client's potential costs. The state disciplinary board requires specific disclosures in such ads. The disclosure rule directly advances the interest in preventing misleading advertising by ensuring clients receive accurate cost information at the point of solicitation.
In late 1981, Philip Q. Zauderer, an attorney practicing in Columbus, Ohio, placed a small advertisement in the Columbus Citizen Journal offering to represent defendants in drunken driving cases with a full legal fee refund if convicted of drunk driving. Charles Kettlewell, an attorney employed by the Office of Disciplinary Counsel of the Supreme Court of Ohio, telephoned Zauderer the second day the advertisement ran and informed him that it appeared to offer representation on a contingent-fee basis in a criminal case. Zauderer immediately withdrew the advertisement and wrote Kettlewell that he would decline any employment resulting from it. In the spring of 1982, Zauderer placed a larger advertisement in thirty-six Ohio newspapers. The advertisement featured a line drawing of the Dalkon Shield accompanied by the question "DID YOU USE THIS IUD?" It described alleged injuries including pelvic infections resulting in hospitalizations, tubal damage, infertility, and hysterectomies. It also described unplanned pregnancies ending in abortions, miscarriages, septic abortions, tubal or ectopic pregnancies, and full-term deliveries. The advertisement stated that the firm was presently representing women on such cases on a contingent fee basis of the amount recovered and that if there is no recovery, no legal fees are owed by clients. The advertisement attracted well over two hundred inquiries and led Zauderer to initiate lawsuits on behalf of one hundred six women. On July 29, 1982, the Office of Disciplinary Counsel filed a complaint against Zauderer alleging violations of several Ohio Disciplinary Rules arising from both advertisements. With respect to the Dalkon Shield advertisement, the Office of Disciplinary Counsel stipulated that the information and advice regarding Dalkon Shield litigation was not false, fraudulent, misleading, or deceptive and that the drawing was an accurate representation of the Dalkon Shield. The complaint charged that the advertisement violated rules prohibiting illustrations, self-recommendation, accepting employment from unsolicited advice, and failing to disclose client liability for costs. A panel of the Board of Commissioners on Grievances and Discipline heard the charges and found that Zauderer had violated multiple Disciplinary Rules. The Board of Commissioners adopted the panel's findings but recommended indefinite suspension rather than the public reprimand proposed by the panel. The Supreme Court of Ohio adopted the Board's findings that appellant's advertisements had violated the Disciplinary Rules specified by the hearing panel and concluded that appellant's conduct warranted a public reprimand. Zauderer appealed to the United States Supreme Court. He contended that the Ohio rules violated the First Amendment as applied to the Dalkon Shield advertisement. He also claimed that the manner of discipline for the drunken driving advertisement violated due process. The Court noted probable jurisdiction in 1984.
View caseDiane Dawson manages a convenience store that displays tobacco products near the register. The state requires tobacco products to be kept behind opaque counters. The placement rule directly advances the interest in reducing youth smoking by limiting visual exposure that encourages impulse purchases.
In November 1998, Massachusetts joined over forty other states in reaching a master settlement agreement with major cigarette manufacturers that provided monetary payments and injunctive relief. Shortly after the agreement, the Attorney General announced plans to issue consumer protection regulations to close gaps in the settlement and prevent recruitment of underage customers. In January 1999, the Attorney General promulgated comprehensive regulations under Mass. Gen. Laws ch. 93A § 2 governing the advertising and sale of cigarettes, smokeless tobacco, and cigars, with an effective date of February 1, 2000. The regulations contained three principal restrictions. Outdoor advertising, including billboards and signs visible from outside retail establishments, was prohibited within a 1,000-foot radius of any public playground, playground area in a public park, elementary school, or secondary school. Point-of-sale advertising was barred if any portion appeared lower than five feet from the floor in retail establishments within the same radius, unless the establishment was adult-only. Self-service displays were forbidden, and all tobacco products had to be placed behind counters accessible only to outlet personnel, with limited exceptions for adult-only stores and small text-only signs. Before the regulations took effect, petitioners—including Lorillard Tobacco Company, Brown & Williamson Tobacco Corporation, R. J. Reynolds Tobacco Company, Philip Morris Incorporated, U. S. Smokeless Tobacco Company, several cigar manufacturers and retailers, and an advertising agency—filed suit in the United States District Court for the District of Massachusetts. The complaint alleged that the regulations violated the Commerce Clause, the Supremacy Clause, the First and Fourteenth Amendments, and were preempted by the Federal Cigarette Labeling and Advertising Act for cigarettes. The District Court granted summary judgment to the Attorney General in two rulings. On appeal, the United States Court of Appeals for the First Circuit affirmed in part and reversed in part. The Supreme Court granted certiorari in 2001 to address the preemption and First Amendment questions.
View caseDemetrius Douglas is a student who wants to host a Tupperware party in a dormitory. The university limits commercial sales on campus to approved vendors. The limit directly advances the interest in maintaining an educational environment by reducing commercial distractions without banning all speech.
The State University of New York adopted Resolution 66-156 in 1979. 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. American Future Systems, Inc. sells housewares such as china, crystal, and silverware to college students exclusively through Tupperware-style parties. 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. In October 1982, an AFS representative conducted such a demonstration in a student's dormitory room at the Cortland campus. Campus police directed her to leave, and upon her refusal arrested her on charges of trespass, soliciting without a permit, and loitering. Respondent Fox and several fellow SUNY/Cortland students sued the university's board of trustees in federal district court for a declaratory judgment. 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. AFS joined the suit as a plaintiff. The district court granted a preliminary injunction in 1983 but, following a trial, entered judgment for the university in 1986. A divided Second Circuit panel reversed and remanded in 1988. The Supreme Court granted certiorari later that year. AFS had by then withdrawn from the case, leaving only the students as respondents. On the same day certiorari was granted, the district court issued a decision on remand striking down the resolution. The parties then stipulated to stay all further proceedings pending Supreme Court action. University officials testified that the resolution prohibits paid tutoring, legal advice, medical consultations, and job counseling in dormitory rooms.
View caseThe regulation must have an immediate connection to the asserted interest rather than a remote or speculative effect. Courts examine whether the restriction will in fact alleviate the harm to a material degree. A ban that leaves the targeted conduct largely unaffected fails this element.
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The directly advances prong asks whether the regulation actually furthers the interest at all. The narrowly tailored prong asks whether the regulation is more extensive than necessary once advancement is shown. Both must be satisfied for the regulation to survive.
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Yes. Substantiality of the interest is a separate threshold question. Even a substantial interest such as privacy or energy conservation will not support a regulation that has no real effect on the problem it targets.
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Courts look for some demonstration that the restriction will reduce the identified harm. Speculation or post-hoc rationalizations are insufficient. Documented complaints or studies showing a connection between the speech and the harm help satisfy the element.
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…governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. III We now apply this four-step analysis for commercial speech to…