Commercial Speech Constitutional Protection Case Law
Since extending First Amendment protection to commercial speech in Bigelow v. Virginia (1975) 421 U.S. 809, 44 L. Ed. 2d 600, 95 S. Ct. 2222 and Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817, the United States Supreme Court has "been careful to distinguish commercial speech from speech at the First Amendment's core. '
"Commercial speech enjoys a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values," and is subject to "modes of regulation that might be impermissible in the realm of noncommercial expression." Florida Bar v. Went for It, Inc. (1995) 515 U.S. 618, 623, 132 L. Ed. 2d 541, 115 S. Ct. 2371, citing Board of Trustees of State Univ. of N. Y. v. Fox (1989) 492 U.S. 469, 477, 106 L. Ed. 2d 388, 109 S. Ct. 3028.)
It has long been recognized that the First Amendment of the United States Constitution applies to the states under the due process clause of the Fourteenth Amendment. (44 Liquormart, Inc. v. Rhode Island (1996) 517 U.S. 484, 489, fn. 1, 134 L. Ed. 2d 711, 116 S. Ct. 1495.)
In certain contexts, article I, section 2, of the California Constitution offers a " 'more definitive and inclusive . . .' " protection of free speech than the First Amendment of the United States Constitution (Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal. 3d 501, 519, 217 Cal. Rptr. 225, 703 P.2d 1119, citation omitted; Robins v. Pruneyard Shopping Center (1979) 23 Cal. 3d 899, 908, 153 Cal. Rptr. 854, 592 P.2d 341).
But we see no basis for distinguishing between the federal and state Constitutions with respect to the issues here on appeal and will refer to both Constitutions by use of the term "First Amendment." In declining to differentiate between the state and federal Constitutions, we find support in People v. Superior Court 96 Cal. App. 3d 181, 157 Cal. Rptr. 628 equating the protection of commercial speech under the California and federal Constitutions and Brown v. Kelly Broadcasting Co. (1989) 48 Cal. 3d 711, 257 Cal. Rptr. 708, 771 P.2d 406 applying same standard of liability for defamation under both Constitutions. (See also Leonardini v. Shell Oil Co. (1989) 216 Cal. App. 3d 547, 555, fn. 1, 264 Cal. Rptr. 883.)
A line of decisions extending from Va. Pharmacy Bd. has sanctioned restraints on commercial speech that is false, deceptive or misleading. (Va. Pharmacy Bd. v. Va. Consumer Council, supra, 425 U.S. at pp. 770-771.)
As stated in Bates v. State Bar of Arizona (1977) 433 U.S. 350, 383, 53 L. Ed. 2d 810, 97 S. Ct. 2691, "advertising that is false, deceptive, or misleading of course is subject to restraint.
Since the advertiser knows his product and has a commercial interest in its dissemination, we have little worry that regulation to assure truthfulness will discourage protected speech. . . . the public and private benefits from commercial speech derive from confidence in its accuracy and reliability.
Thus, the leeway for untruthful or misleading expression that has been allowed in other contexts has little force in the commercial arena." (See also Ibanez v. Florida Dept of Business and Professional Regulation, Bd. of Accountancy (1994) 512 U.S. 136, 142, 129 L. Ed. 2d 118, 114 S. Ct. 2084; Edenfield v. Fane (1993) 507 U.S. 761, 768, 123 L. Ed. 2d 543, 113 S. Ct. 1792; People v. Morse (1993) 21 Cal. App. 4th 259, 265; People v. Superior Court (Olson), supra, 96 Cal. App. 3d at p. 191.)