How Does the Court Evaluate Advertisements As Commercial or Noncommercial Speech ?
In Bolger v. Youngs Drug Prods. Corp., 463 US 60, 65 1983, the Court was evaluating pamphlets conceded to be advertisements for a specific product, condoms, which also contained discussions of public issues such as venereal disease and family planning.
It held that the pamphlets were properly characterized as commercial speech.
The Court, however, recognized that a different conclusion may be appropriate where the material advertises an activity itself protected by the First Amendment. (Bolger v. Youngs Drug Prods. Corp., supra, 463 US, at 66-68, n 14, citing Murdock v. Pennsylvania, 319 US 105 1943 advertisement for religious book cannot be regulated as commercial speech; Jamison v. Texas, 318 US 413 1943.)
Moreover, where the main purpose of the work is noncommercial, and the commercial and noncommercial component parts of "a single speech are inextricably intertwined," the Court cannot parcel out the speech "applying one test to one phrase and another test to another phrase ... Therefore, the Court must apply our test for fully protected expression." ( Riley v. National Fedn. of Blind, 487 US 781, 796 1988; see, Oxycal Labs. v. Jeffers, 909 F Supp 719, 724-725, supra.)