First Amendment

The United States Constitution, through the First Amendment, places constraints on government repression of speech. Advertising is recognized by the courts as a form of "commercial speech." Commercial speech has been defined by the Court as speech "which does no more than propose a commercial transaction." Although the courts never have recognized it as being as valuable as some other forms of speech, commercial speech is protected by the First Amendment.

This means that many of the criticisms aimed at advertising are not regulable by government. However, the Supreme Court, in Central Hudson Gas & Electric v. Public Service Commission, declared that commercial speech can be regulated if:

It is misleading or concerns an illegal product, OR if
There is a substantial government interest, AND
The regulation directly advances that government interest, AND
The regulation is narrowly tailored to that interest.

If a regulation can pass that test, it will be held constitutional. You can read some of the advertising-related Supreme Court decisions here. In addition, we have provided a bibliography of articles and books about commercial speech, to help you learn more about this topic, along with some quotes about advertising and free speech.