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#Intermediate scrutiny test free

Rhode Island (1996), writing: “In my view, the Central Hudson test asks the courts to weigh incommensurables - the value of knowledge versus the value of ignorance - and to apply contradictory premises - that informed adults are the best judges of their own interests, and that they are not. Most forcefully, Justice Clarence Thomas called for its abdication in his concurring opinion in 44 Liquormart v. However, several justices have criticized it. The Central Hudson test remains the dominant test in commercial speech jurisprudence. Furthermore, the government does not have to justify its regulation as the least speech-restrictive means.

The Central Hudson test is a form of intermediate scrutiny, as the government only has to put forth a substantial governmental interest, rather than a compelling governmental interest as in a strict scrutiny analysis.

The regulation must be narrowly tailored.

The regulation must directly and materially advance the government’s substantial interest.

The government must have a substantial interest.

If it meets these requirements, then there are three other prongs: The Central Hudson test has a threshold prong – does the speech concern lawful activity and is it non-misleading. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than necessary to serve that interest." Components of Central Hudson test Next, we ask whether the asserted governmental interest is substantial. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. "At the outset, we must determine whether the expression is protected by the First Amendment. In the decision, Justice Lewis Powell crafted the Central Hudson test, writing: The Court did so in the Central Hudson case, involving the constitutionality of a New York rule banning “promotional advertising” by electrical utilities. While the Court recognized that commercial speech received free-speech protection, it did not create a test for evaluating such restrictions.

#Intermediate scrutiny test free

In that decision, the Court declared that the old rule was of “doubtful validity” and declared that “the free flow of commercial information is indispensable.” Virginia Citizens Consumer Council (1976). The Court did not overrule this principle until Virginia State Pharmacy Bd. Chrestensen (1942) that “e are equally clear that the Constitution imposes no such restraint on government as it respects purely commercial advertising.” Court develops test for valid restrictions on commercial speech of N.Y.Ĭommercial speech used to receive zero free-speech protection. It comes from the decision bearing its name, Central Hudson Gas & Elec. The Central Hudson test is the Supreme Court’s test for determining whether a regulation of commercial speech satisfies First Amendment review. (Image via Wikimedia Commons, public domain.) This 1973 photo by David Falconer for the Environmental Protection Agency shows how Oregon firms used their unlit signs to convey energy-saving messages during the ban. In Oregon, the governor banned neon and commercial lighting displays to conserve energy. It arose from the 1973 energy crisis when New York ordered utilities to stop advertising as a way to try to reduce consumer demand and consumption. The Central Hudson test was developed by the Supreme Court to determine when commercial speech could be regulated under the First Amendment.