– But a new four-part test will be used for determining whether
commercial speech could be regulated:
(1) Protected speech: First, courts must determine if the
commercial speech is protected under the First Am. All commercial
speech receives at least partial protection except for: (1) speech
that is “misleading” and (2) speech which concerns unlawful activity
[such as prostitution ads]. If the speech is misleading or concerns
unlawful activity, it receives no protection and can be fully
regulated by the government.
(2) Substantial government interest: Second, the court must ask
whether the governmental interest asserted in support of the
regulation is “substantial.” If not, the regulation will be struck
down without further inquiry. If the interest is substantial, the
government must still meet the final two parts of the test.
(3) Interest “directly advanced”: Third, the court will decide
whether the regulation directly advances the governmental interested
(i.e., conserving energy) evaluated in part (2). If it does not, the
regulation will be struck down, if It does, it will still have to
meet the next and last part of the test.
(4) Means-end fit: Finally, the Court will decide whether the
regulation is “not more extensive than is necessary” to serve the
governmental interest. If it is more extensive than necessary, the
regulation will be struck down
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