Legal Beat-Commercial Speech (658 words)
The First Amendment protects freedom of speech. Nevertheless, during the years, the federal courts have distinguished the concept of commercial speech from non-commercial speech.
Non-misleading commercial speech regarding a lawful activity is a form of protected speech under the First Amendment, although it's afforded less protection than non-commercial speech.
The core notion of commercial speech includes speech that does no more than propose and deal with a commercial transaction. The Central Hudson case established a four-pronged test to determine whether a government regulation is reasonable and does not violate the First Amendment.
Non-Misleading Commercial Speech
The first test is to conduct a "threshold inquiry": whether the commercial speech concerns a lawful activity that is not misleading. If this threshold requirement is met, the government may restrict the speech only if it proves all of the following:
1. It has a substantial interest in regulating the speech and that interest is served by the restriction on the commercial speech.
2. The regulation must directly and materially advance that asserted governmental interest.
3. The regulation must be no more extensive than is necessary to serve that interest.
As required by the Telecommunications Act of 1996, the Federal Communications Commission (FCC) recently adopted rules restricting the use of "Customer Proprietary Network Information" (CPNI) on telephone customer data. One of the restrictions was the adoption of opt-in customer consent, as opposed to opt-out. CPNI includes data about individual customers' identities, calling patterns, services they buy and other account information. The CPNI data are confined to telecom carriers, but may have application to certain marketers and may affect the use and accessibility for marketing and directory purposes generally.
The First Amendment provides that Congress shall make no law abridging the freedom of speech. The government argued that this regulation did not affect speech, because it only prohibited the telecommunications carrier from using CPNI to target customers and did not prevent the petitioner from communicating with customers or limiting anything they say to their customers.