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CentralHudson - commercial speech More recently the test...

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Central Hudson test This is used by the courts to decide if a government regulation of advertising violates the First Amendment. Precedent: Central Hudson Gas and Electric Corp. v. Public Service Commission (1980)
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Central Hudson test (cont.) There are four parts: 1. Is the commercial expression eligible for First Amendment protection? If the answer is “No,” the government can regulate, and there’s no need to consider the rest of the test.
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Central Hudson (cont.) 2. If “Yes,” does the government have a substantial interest in regulating the expression? The burden of proof is on the government now.
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Central Hudson test (cont.) 3. Does the government regulation being challenged directly advance the asserted government interest?
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Central Hudson (cont.) 4. If so, the regulation must be no more extensive than necessary to serve that government interest.
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Application of Central Hudson Initially the test was applied in ways that appeared to erode protection for
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Unformatted text preview: commercial speech. More recently, the test has been applied in ways that are very protective of commercial speech. App. of Central Hudson (cont.) Compare Board of Trustees, State University of New York v. Fox (1989) with Rubin v. Coors Brewing Co. (1995). Fox case Court said there must be a reasonable fit between the government interest and the regulation. The regulation did not need to be the least severe that would achieve the desired result. Rubin case The Court said the government regulation failed the 3 rd and 4 th prongs of the Central Hudson test. The Court demanded proof that the regulation would reduce alcohol consumption (3 rd prong of the test). The law today The Central Hudson test is used and is applied in ways that generally are quite protective of the First Amendment rights of advertisers. The Court is divided over the test; some justices want to protect advertising at the same level as political speech....
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  • Spring '08
  • HOFEDGES
  • First Amendment to the United States Constitution, Central Hudson test, Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, Central Hudson

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