Page 300 - The Handbook of Persuasion and Social Marketing

276 The Handbook of Persuasion and Social Marketing

restriction it seeks to impose on commercial speech. Second, the limitation
on expression must be designed carefully to achieve the state’s goal. Third,
the restriction cannot be excessive if the governmental interest could be
served as well by a more limited restriction (Central Hudson Gas & Electric
v. Public Service Commission of New York, 1980, pp. 564–565). In that case,
New York had prohibited all advertising and promotion for electric service,
but the court held that the prohibition was too broad because it would also
include advertising and promotion for electricity that was neutral as to con-
servation or even promoted conservation.
Over the years, the U.S. Supreme Court has supported state law prohi-
bitions of speech only for lottery advertising (private lotteries being illegal
or heavily regulated) and for in-person or targeted solicitation by attor-
neys. The court has overturned many state law speech prohibitions despite
their justification by various social benefit arguments. It has overturned
bans on price advertising for prescription drugs and legal services, on the
inclusion of alcohol content in beer labeling, on the advertising of areas of
professional specializations, and on various forms of solicitation, such as
direct mail and commercial newsletters sold in vending machines. In most
cases, the court admitted that there was a substantial government or pub-
lic interest in the regulation but found the interest was not directly ad-
vanced, the regulation was not tailored narrowly enough to advance just
the interest, or both.
With regard to commercial marketing, the FTC protects consumers from
harassing or overly intrusive practices such as repeated or late-night tele-
marketing calls and the use of automatic telephone dialing systems without
prior consent (16 C.F.R. § 310). The Minnesota Supreme Court found that
state law provisions banning the use of automatic telephone dialing systems
for commercial solicitation without prior permission from those being solic-
ited did not violate the First Amendment. The court found that the regula-
tion was neither a complete ban on commercial solicitation nor a complete
prohibition on the use of automatic dialing devices. Rather, the regulation
was narrowly crafted to advance the state’s interest in protecting residential
privacy (State by Humphrey v. Casino Marketing, 1992). Similarly, the Tenth
Circuit Court of Appeals upheld the FTC’s Do Not Call Registry, finding it to
be a reasonable restriction on commercial speech that was more intrusive
and posed a greater danger of consumer abuse compared to other forms of
speech. This restriction was consistent with the U.S. Supreme Court prece-
dent that consumers could refuse commercial solicitations at their front
door or mailbox (Mainstream Marketing Services Inc. v. FTC, 2004).
An important question for commercial marketing regulation is whether
the First Amendment will allow laws that require information disclosure.