Advertising Censorship Laws in America
Advertising censorship laws in the United States are typically derived from judicial interpretations of the Constitution's free speech protections. Although freedom of speech protects the right to advertise commercial products, these rights are not without restriction. The U.S. Supreme Court has tackled these issues in a series of cases dealing with the advertisement of professional services and consumer goods.
Government censorship of advertisements is considered a violation of the First Amendment, unless an exception applies. The Supreme Court has reviewed a number of cases involving a state government's attempt to limit or prohibit certain types of commercial advertising, known as commercial speech. The Court ultimately decided that state governments can constitutionally limit or control advertising as long as the restriction is content-neutral and reasonable in location and duration. For example, the state government can require a small business to take down or move a large sign that presents a risk to motorists or blocks a traffic light. This restriction has nothing to do with the content of the message and is constitutional, as long as the business owner can place the sign in an alternative, reasonable location. The duration requirement holds that the government cannot enact the restriction longer than necessary to serve its purpose.
A group of cases in the 1970's addressed the Supreme Court's opinion of state restrictions on the advertising of prescription drug prices and legal services. In both cases, the state governments argued that advertising these types of services was "unprofessional." The court held in both cases that government restrictions on advertising that result in a withholding of information from consumers is a violation of the First Amendment. The court further concluded that the rights to free speech are not limited just to the speaker, but the listener as well.
In 1980, the Supreme Court decided a case dealing with a state ban on deceptive advertising. The case established a four-part test to determine whether the ban on commercial speech is constitutional. The first threshold involved determining whether the commercial speech is false, misleading or deceptive. If the advertisement fits this description, it is not covered by the First Amendment and government censorship is legal. If the commercial speech does not fit the description of deceptive advertisement, the Court imposes further analysis. Any governmental restriction on legitimate advertising must advance a significant public interest. It should be no more extensive than necessary to achieve the government's purpose. In other words, the government's intent in enacting the restriction must be in response to a major issue affecting citizens. For example, cigarette ads that target kids by using cartoon characters can be restricted on the basis that they might lure children into buying a product that will harm their health.
Obscene advertisements are not afforded First Amendment protections and governments are free to censor this type of marketing. The question is, What is obscene? The Court has grappled with this issue since the 1890's and has yet to develop a national standard or objective test. Former Supreme Court Justice Potter Stewart famously said that though he could not define obscenity, "I know it when I see it." As a general rule, an advertisement can be censored if it would offend the average person in today's society, depicts sexual conduct expressly prohibited by law, and lacks any serious literary, artistic, political, or scientific value.
Government censorship of advertisements touting illegal products or unlawful activity are also upheld as an exception to the right to free speech. In a 2007 case, this restriction was tested when a defendant was prosecuted for promoting child pornography, but was not actually in possession of images depicting children. The Court upheld the conviction and found no requirement that an advertiser actually possess the unlawful material or products as long as the advertisement would lead a reasonable consumer to believe the products were available.