The Burger Court and the Rise of the Judicial Right by Michael J. Graetz

Author:Michael J. Graetz
Language: eng
Format: epub
Publisher: Simon & Schuster

Lewis Powell’s Four-Step

By insisting in the Virginia Pharmacy case that untrue or misleading advertising is not constitutionally protected, the Court made clear that First Amendment protections for commercial speech are less robust than for political speech.22 The Court then turned to spelling out the limits of its commercial speech doctrine. Having strongly disagreed with Blackmun’s decision on lawyer advertising, Chief Justice Burger assigned the Central Hudson opinion to Lewis Powell. Powell took the opportunity to detail how courts should apply the new constitutional protection for commercial speech. This produced the usual back-and-forth with his clerks and more than usual dialogue with his colleagues. Just eight days before the opinion was published, Powell’s law clerk described a “crossfire” of criticism from Powell’s colleagues on both his left and right.23

In Central Hudson, Powell insisted that the legal protection for commercial speech turns on its value to the audience, not the speaker: “The First Amendment’s concern for commercial speech is based on the informational function of advertising.”24 He then proceeded to set forth a four-step test for lawful government constraints that he claimed had been “developed” in earlier cases: First, the commercial speech must be about a legal product, truthful, and not misleading. Second, if so, the government cannot prohibit the speech unless the governmental interest is “substantial” (which, for example, the state’s interest in energy conservation was in Central Hudson). Third, if the government interest is substantial, the regulation of speech must directly advance the governmental interest (which the ban on promoting energy consumption did). Finally, the governmental constraint must not be more extensive than necessary to serve the government’s purpose. Here, the Court concluded, was where the New York Public Service Commission foundered.

Blackmun and Stevens concurred in the result in Central Hudson, but insisted that prior decisions failed to support Powell’s four-part test. They urged giving commercial speech constitutional protections equivalent to political speech—a view that seems to command a majority of today’s Supreme Court.

William Rehnquist was once again the lone dissenter. Even accepting the conclusion of Virginia Pharmacy that commercial speech is entitled to some First Amendment protection, Rehnquist objected to extending such protection to a state-created and regulated monopoly, such as this electric company. Rehnquist pointed out that the New York utility commission could have constitutionally promoted energy conservation by increasing electricity prices, an action that consumers certainly would have regarded as “more extensive” than the ban on promotional advertising. He also—correctly as it would turn out—described the “no more extensive than necessary” fourth prong of Powell’s test as an invitation to courts to substitute their own judgment “for that of the State in deciding how a proper ban on promotional advertising should be drafted.” Rehnquist insisted that the discretion given to courts under Central Hudson—indeed the constitutional protection accorded to commercial speech under Virginia Pharmacy—had “unlocked a Pandora’s Box” of issues whose resolution “on a judicial battlefield will be a very difficult one.” Invoking the Founders, Rehnquist said: “Nor do I think those who won our independence, while

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