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"Central Hudson" test

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Overview Edit

Since 1980, the courts have analyzed regulations affecting advertising for commercial products or professional services (i.e., commercial speech) under the four-part test set forth by the U.S. Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York.[1] The "Central Hudson" test asks:

(1) whether the speech at issue concerns lawful activity and is not misleading;
(2) whether the asserted government interest is substantial; and, if so,
(3) whether the regulation directly advances the governmental interest asserted; and
(4) whether it is not more extensive than is necessary to serve that interest.

In this analysis, the government bears the burden of identifying a substantial interest and justifying the challenged restriction: “The government is not required to employ the least restrictive means conceivable, but it must demonstrate narrow tailoring of the challenged regulation to the asserted interest — a fit that is not necessarily perfect but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.”[2]

Moreover, “the four parts of the Central Hudson test are not entirely discrete. All are important and, to a certain extent, interrelated: Each raises a relevant question that may not be dispositive to the First Amendment inquiry, but the answer to which may inform a judgment concerning the other three.”[3]

References Edit

  1. 447 U.S. 557 (1980) (full-text).
  2. Id. at 566.
  3. Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173 (1999) (full-text) (internal quotation marks omitted). See also 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 499-500 (1996) (full-text).

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