The Pandora's Box of 21st Century Commercial Speech Doctrine: Sorrell, R.A.V., and Purposed-Contained Scrutiny19 Nexus: Chap. J. L. & Pol'y 19 (2014)
The Supreme Court's decision in Sorrell v. IMS Health is, at first blush, somewhat puzzling: It struck down a Vermont statute that regulated drug marketing. The statute, it said, ran afoul of the First Amendment when it burdened commercial speech on the basis of its content (drug marketing). But one of the Supreme Court's seminal commercial speech cases - Central Hudson Gas v. Public Service Commission of New York - had already made clear that, while ‘in most other contexts, the First Amendment prohibits regulation based on the content of the message,‘ certain features of commercial speech *20 make it constitutionally acceptable to ‘permit regulation of its content.‘ What then made Vermont's law regarding drug marketing's content impermissible? In the view of the dissent, and some scholars, the Sorrell majority had no good answer to this question. It was inexplicably deviating from a large body of First Amendment case law that gave legislators significant deference in their choice of which industries to regulate and which commercial activity to focus upon. This article argues that rather than deviating from precedent, the Court was struggling to explain how commercial speech doctrine can be squared with key principles of First Amendment jurisprudence set forth in the 1992 case of R.A.V. v. St. Paul, which made clear that even where content-based regulation is permissible, it is only permissible for limited reasons.
Citation InformationMarc J. Blitz. The Pandora's Box of 21st Century Commercial Speech Doctrine: Sorrell, R.A.V., and Purposed-Contained Scrutiney 19 Nexus: Chap. J. L. & Pol'y 19 (2014).