Also known as: four part standard · four-part test · four part test · four-factor test · four-prong test
Written by attorneys — see sources below.
An intermediate scrutiny framework for evaluating government restrictions on commercial speech. The speech must first concern lawful activity and not be misleading. If so, the regulation is valid only if the government interest is substantial, the regulation directly advances that interest, and the restriction is not more extensive than necessary.
The State Health Authority bars pharmaceutical companies from advertising prescription drugs on streaming platforms while allowing print ads in medical journals. PharmaCorp, which runs truthful ads with risk disclosures, sues claiming a First Amendment violation. A court applies the four-part standard and finds the ban fails because it is more extensive than necessary to protect public health.
State regulators prohibit outdoor signs advertising tobacco prices near schools. A retailer posts truthful price signs and challenges the rule. The court applies the four-part standard, finds the asserted interest substantial and directly advanced, yet holds the total ban more extensive than necessary because targeted disclosure rules would suffice.
eBay Inc. operates a popular Internet Web site that allows private sellers to list goods they wish to sell, either through an auction or at a fixed price. Petitioner Half.com, now a wholly owned subsidiary of eBay, operates a similar Web site. Respondent MercExchange, L.L.C., holds several patents, including a business method patent for an electronic market designed to facilitate the sale of goods between private individuals by establishing a central authority to promote trust among participants. See U.S. Patent No. 5,845,265. MercExchange sought to license its patent to eBay and Half.com, as it had previously done with other companies, but the parties failed to reach an agreement. MercExchange subsequently filed a patent infringement suit against eBay and Half.com in the United States District Court for the Eastern District of Virginia. A jury found that MercExchange's patent was valid, that eBay and Half.com had infringed that patent, and that an award of damages was appropriate. eBay and Half.com continue to challenge the validity of MercExchange's patent in proceedings pending before the United States Patent and Trademark Office. Following the jury verdict, the District Court denied MercExchange's motion for permanent injunctive relief, 275 F. Supp. 2d 695 (2003). The Court of Appeals for the Federal Circuit reversed, applying its general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances, 401 F.3d 1323, 1339 (2005). The Supreme Court granted certiorari to determine the appropriateness of this general rule, 546 U.S. 1029 (2005).
View caseA court first determines whether the speech concerns lawful activity and is not misleading. If the speech fails this threshold, the government may prohibit it outright without further analysis.
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The regulation fails when it is more extensive than necessary to serve the asserted interest. A complete ban on a category of truthful advertising is invalid if narrower alternatives such as disclosure requirements would achieve the goal.
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No. Even when the state asserts consumer-protection or competitor-protection interests, a categorical ban on truthful, nonmisleading commercial speech violates the standard because it is not reasonably tailored to the asserted goals.
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