Hinegardner: Abrogating The Supreme Court's de Facto Rational Basis Standard For Commercial Speech

HINEGARDNER FINAL 1/4/2010 10:52:06 AM
ABROGATING THE SUPREME

COURTS DE FACTO RATIONAL
BASIS STANDARD FOR
COMMERCIAL SPEECH: A SURVEY
AND PROPOSED REVISION OF THE
THIRD CENTRAL HUDSON PRONG
Shannon M. Hinegardner*
Abstract: Commercial speech maintains a unique place in First Amendment
jurisprudence, as it is positioned between judicial deference to legislatures
decreeing on economic concerns and judicial protection of speech under the
First Amendment. Nearly thirty years ago, the U.S. Supreme Court handed
down Central Hudson, a seminal case that created standards to determine
whether a regulation is an unconstitutional infringement on commercial
speech. Central Hudson has been undisturbed by further Supreme Court
cases, however it has instigated a substantial amount of critique about the
continued workability of the moving parts of the test. This Note joins such
critiques by taking issue with the third prong of the Central Hudson test that
requires a state regulation on commercial speech to directly advance the
state interest involved. This Note both examines judicial interpretation of
this third prong and suggests a means of remedying the problems through
implementation of a newly-constructed material evidence test.
The third prong must be amended because courts experience difficulties in
determining how much deference they should grant to legislative judgment.
Allowing too much deference to the legislature creates two distinct
problems. First, blindly submitting to the legislative bodys decisions
threatens a dilution of the First Amendments intermediate scrutiny
protection of commercial speech to an unlawful rational basis level. Second,
an overly deferential approach can allow the creation of regulations that keep
the public ignorant of commercial choices by suppressing commercial
speech. Under Central Hudson, courts cannot inquire into the legislatures
motives. This has allowed lawmakers to control undesirable conduct by
restricting commercial speech, especially advertising of potential socially
521
522 NEW ENGLAND LAW REVIEW [Vol. 43:521
harmful products. The Court has labeled this process as paternalism

because it keeps citizens ignorant to manipulate their choices in the
marketplace. Although the Supreme Court has repeatedly struck down
paternalistic restrictions, it has not fashioned a mechanism for a formalistic
evaluation of paternalism within the Central Hudson framework.
The Court should create more stringent safeguards to protect commercial
speech by providing additional standards to implement the third prong
inquiry of whether the legislature has produced sufficient evidence to allow
the judiciary to perform an informed analysis of the challenged regulation.
These new standards must (1) determine the effectiveness (direct
advancement) of the regulation in relation to its harms and (2) determine
that the regulation is not paternalistic. This Notes proposed material
evidence standard will remedy both articulated problems that currently
allow courts to defer to the legislature.
INTRODUCTION ..........................................................................................524
I. The Third Prongs Shortcomings ............................................526
BACKGROUND ............................................................................................530
II. Central Hudson and Its Progeny .............................................530
A. Central Hudsons Establishment of the Commercial
Speech Test........................................................................530
B. The Emergence of Common Sense Legislative
Judgment............................................................................532
1. Metromedia v. City of San Diego Defers To
Common-Sense Judgment of Local Legislatures. ...532
2. Edenfield v. Fane Requires Evidence Beyond
Mere Speculation and Conjecture............................534
3. Florida Bar v. Went for It, Inc. Furthers the
Common Sense Standard in Dicta. ..........................535
C. Recent Supreme Court Interpretations of the Third
Central Hudson Prong .......................................................536
1. Ibanez Emphasized That the States Burden is Not
Slight. ........................................................................536
2. Coors Brewing Found the Third Prong Standard to
Be Critical................................................................537
3. 44 Liquormart Added the Requirement of
Significant Advancement to Uphold the Third
Prong. ..........................................................................538
4. Greater New Orleans Upheld the Right of the
Audience to Assess the Value of Accurate
Information..................................................................539
5. Lorillard Tobacco Affirmed Food and Drug
Administrations (FDA) Findings About Youth
and Tobacco Use Under the Third Prong....................540
2009] CENTRAL HUDSONS THIRD PRONG 523
6. Thompson Required Commercial Speech

Restriction to Be Necessary as Opposed to Merely
Convenient.................................................................541
7. A Conclusion of the Current Status of the Third
Central Hudson Prong .................................................542
D. The Recurring Court Aversion to Paternalistic
Restrictions ........................................................................544
III. The Circuit Split ......................................................................546
A. Rejecting State Regulation on the Grounds of
Speculation and Conjecture............................................546
B. Paternalism in the Circuits.................................................551
ANALYSIS ..................................................................................................553
IV. The Proposed Material Evidence Test .................................553
A. An Overview of the Parameters of the Material
Evidence Test...................................................................553
1. The Procedural Component Mimics the Burden-
Shifting in McDonnell Douglas. .................................553
2. The Substantive Component Rejects Simple
Common Sense..........................................................555
B. The Governments Initial Burden: Some Quantum of
Evidence Beyond Mere Speculation and Conjecture
Sets a Floor for the Third Central Hudson Prong..............555
C. The Plaintiffs Burden: Triggering Higher Standard of
Evidence in Face of a Perceived Paternalistic
Restriction..........................................................................559
D. The Governments Rebuttal Burden: Ensuring That the
Legislature Acts Constitutionally When Creating
Restrictions on Commercial Speech ..................................562
V. Applying the Material Evidence Test ..................................563
A. Pagan v. Fruchey Exemplifies the Problem with
Common Sense...............................................................563
B. Anheuser-Busch Fails to Conform With Supreme Court
Standards............................................................................565
CONCLUSION ..............................................................................................567
I share [the] discomfort with the Central Hudson test [for

commercial speech], which seems to me to have nothing more than policy
intuition to support it. 1
INTRODUCTION
Since April 2002, the United States Supreme Court has remained
silent on the ever-elusive doctrine of commercial speech under the First
Amendment. 2 This six-year reticence has spurned a cacophony from lower
courts as the nation continues its path toward consumerism and
commercialization, 3 leaving local courts and legislatures struggling to
determine the parameters of regulation standards on commercial speech. 4
Critics have focused the brunt of their critique of the commercial
speech doctrine on the Central Hudson test, 5 the four-pronged standard the
Court adopted in 1980 to evaluate governmental restrictions on commercial
speech. 6 The Supreme Court established the Central Hudson test to address
* Candidate for Juris Doctor, New England School of Law (2009); B.A., Journalism, Speech
Communication, Miami University (2006). The author may be contacted at
smhinegardner@gmail.com.
1. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 517 (1996) (Scalia, J.,
concurring).
2. See Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002).
3. See R. GEORGE WRIGHT, SELLING WORDS: FREE SPEECH IN A COMMERCIAL CULTURE,
182-83 (1997) (Commercialization . . . reflects a number of underlying societal trends.
Advances in communications technology, urbanization, increasing wealth itself, the
Keynesian revolution in budgeting, changes in family size, and the decline of competing
institutions all have played some role.).
4. See, e.g., Borgner v. Florida Bd. of Dentistry, 284 F.3d 1204, 1210-16 (11th Cir.
2002), cert. denied, 537 U.S. 1080 (2002) (Thomas, J., dissenting) (This case presents an
excellent opportunity to clarify some oft-recurring issues in the First Amendment treatment
of commercial speech and to provide lower courts with guidance . . . .).
5. See, e.g., Scott Joachim, Note, Seeing Beyond the Smoke and Mirrors: A Proposal
for the Abandonment of the Commercial Speech Doctrine and an Analysis of Recent
Tobacco Advertising Regulations, 19 HASTINGS COMM. & ENT. L.J. 517, 541-61 (1997)
(criticizing the commercial/noncommercial distinction and President Clintons proposal for
a partial ban on tobacco advertising); Albert P. Mauro, Jr., Comment, Commercial Speech
after Posadas and Fox: A Rational Basis Wolf in Intermediate Sheeps Clothing, 66 TUL. L.
REV. 1931, 1931 (1992) (arguing that recent judicial opinions have rendered commercial
speech protection an endangered species). Supreme Court justices themselves have even
questioned the continuing validity of Central Hudson standards. Thompson, 535 U.S. at 377
(Thomas, J., concurring) (I continue, however, to adhere to my view that cases such as this
should not be analyzed under the Central Hudson test.).
6. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of N.Y., 447 U.S. 557,
566 (1980). Classifying speech as commercial invokes the Central Hudson test. Id. The
Supreme Court defines commercial speech as speech that propose[s] a commercial
the unique tension of commercial speechs place between judicial

deference to a legislature when deciding on economic concerns and judicial
protection of speech under the First Amendment. 7
Central Hudson states the four-step process (or four prongs of
analysis) that courts must use when determining whether to uphold a
regulation that infringes on commercial speech. 8 First, the speech cannot be
unlawful or misleading; 9 second, the regulation must further a substantial
interest of the state; third, the regulation must directly advance the state
interest involved; and fourth, the regulation cannot be more extensive than
necessary to serve the state interest. 10
This Note takes issue with the third Central Hudson prong
(hereinafter third prong or direct advancement prong). The Supreme
Court and lower courts have diluted the protection of commercial speech
under Central Hudson in their application of the direct advancement
prong. This dilution has given too much deference to the legislatures and
provided insufficient judicial scrutiny of regulations that infringe on
commercial speech.
The primary purpose of this Note is to accumulate a very narrow but
comprehensive analysis of jurisprudence on the third Central Hudson
prong. The secondary objective is to borrow Supreme Court precedent from
transaction. Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 473 (1989)
(quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 762
(1976)). Sufficient debate has surrounded defining commercial speech, however a fairly
standard consensus has adhered to the aforementioned definition. See, e.g., Nat Stern, In
Defense of the Imprecise Definition of Commercial Speech, 58 MD. L. REV. 55, 56 (1999).
7. While commercial speech is clearly expression, the police powers of government to
regulate economic aspects of the community and the health, safety, and welfare of citizens
create a countervailing interest to justify special treatment. See Jason R. Burt, Speech
Interests Inherent in the Location of Billboards and Signs: A Method for Unweaving the
Tangled Web of Metromedia, Inc. v. City of San Diego, 2006 BYU L. REV. 473, 474.
8. See Cent. Hudson, 447 U.S. at 564.
9. Some courts view Central Hudson as a three-pronged inquiry by collapsing this first
prong evaluation of truthfulness into the general application of the test. See, e.g., IMS
Health Inc. v. Ayotte, 550 F.3d 42, 78 (1st Cir. 2008) (Under Central Hudson, truthful
commercial speech that does not promote unlawful activity may be limited only if it (1) is in
support of a substantial government interest, (2) directly advances the governmental interest
asserted, and (3) is not more extensive than is necessary to serve that interest.) (internal
citations, quotations omitted). For the purposes of this Note, the Central Hudson test will be
referred to as using four prongs, with further clarification if a court is using the identical but
differently numbered three prongs of analysis.
10. Id.
another legal discipline that remedied evidentiary issues in employment

law discrimination cases, and propose the application of that standard to the
third prong of the Central Hudson test. 11
Part I of this Note will summarize the two primary problems that have
emerged from the erroneous interpretation of the third prong in the
commercial speech context. Part II will explain the Central Hudson test
and detail how the Supreme Court weakened commercial speech
protection. Part III will track the circuit courts interpretation and
application of Supreme Court precedent. Part IV will then launch a critical
analysis of the Central Hudson third prong standard by proposing a new
material evidence test. The material evidence test stipulates how the
government should prove and justify the articulated harm it seeks to
remedy with its restriction on commercial speech. Finally, Part V applies
the material evidence test to two circuit court holdings to show how
courts could implement the moving parts of this Notes newly proposed
standard.
I. The Third Prongs Shortcomings

When courts apply the third prong of the Central Hudson test, they
have difficulty in determining how much they should yield to legislative
judgment when conducting the commercial speech inquiry. 12 Allowing too
much deference to the legislature creates two distinct problems. First,
blindly submitting to the legislative bodys decisions threatens to eviscerate
the First Amendments protection of commercial speech. 13 Although
commercial speech is a subordinate First Amendment value, it still
enjoys a limited measure of protection. 14 This measure of protection is
found in the Central Hudson intermediate scrutiny test. 15 Generally,
intermediate scrutiny requires the government regulation to achieve
important ends through substantially related means. 16 It is wholly
distinct from strict scrutiny, which requires compelling ends and
11. See infra Parts IV-V. The application of the employment law discrimination
evidentiary standard to commercial speech has been labeled the material evidence test in
this Note. See infra Part IV.
12. See, e.g., Anheuser-Busch, Inc. v. Mayor of Baltimore City, 855 F. Supp. 811, 815
(D. Md. 1994) (noting the difficulty in determining the precise level of scrutiny to review
the citys ordinance).
13. See generally Mauro, supra note 5, at 1953 (noting a downward trend toward
rational basis protection for commercial speech).
14. Ohralik v. Ohio State Bar Assn, 436 U.S. 447, 456 (1978).
15. See, e.g., Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of N.Y., 447 U.S.
557, 573 (1980) (Blackmun, J., concurring).
16. See KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 774 (15th
ed. 2004) (quoting Craig v. Boren, 429 U.S. 190, 220-21 (1976)).
necessary means, and rational basis scrutiny, which requires legitimate

ends and rationally related means. 17 Furthermore, the Court itself has
clearly stated that Central Hudson protection is not rational basis review. 18
The cornerstone of rational basis review is the assumption that the
legislatures judgment is appropriate. 19 In other words, the presumption of
legislative validityor deference to legislatureis required to be absent in
the Central Hudson test. 20 Courts that ignore this key difference among the
scrutiny levels permit laws that directly conflict with the articulated
intermediate scrutiny standard for commercial speech. 21
The Supreme Court ventured into the dangerous territory of reducing
the level of scrutiny for commercial speech when it handed down
Metromedia, Inc. v. City of San Diego, the first case interpreting Central
Hudson. 22 In Metromedia, the Court stated that the city of San Diego could
use common sense as evidence to uphold its regulation under the inquiry
of the direct advancement Central Hudson prong. 23 Later cases have
regurgitated this common sense standard, 24 however a closer look at the
common sense rationale shows that it creates a de facto rational basis
standard because common sense provides absolutely no basis for the
17. Id. at 643. Rational basis review is the lowest (most lenient) standard of scrutiny and
will never be applied to speech that is actually protected by the First Amendment. However,
low value speech that does not receive First Amendment protection, like obscenity or
fighting words, will be evaluated under rational basis scrutiny. See Brandenburg v. Ohio,
395 U.S. 444, 447-48 (1969); Roth v. United States, 354 U.S. 476, 502 (1957).
18. See Edenfield v. Fane, 507 U.S. 761, 768 (1993). Deference to legislative judgments
is reserved to rational basis review. See Ry. Express Agency v. New York, 336 U.S. 106,
109 (1949).
19. See generally Robert C. Farrell, Successful Rational Basis Claims in the Supreme
Court from the 1971 Term Through Romer v. Evans, 32 IND. L. REV. 357, 399-400 (1999).
Rational basis review [is] not a license for courts to judge the wisdom, fairness, or logic of
legislative choices. Id. at 399 (internal quotations and footnote omitted).
20. See Fed. Commcns Commn v. Beach Commcns, Inc., 508 U.S. 307, 315 (1993)
([T]hose attacking the rationality of the legislative classification have the burden to
negat[e] every conceivable basis that might support it.) (internal quotations omitted). It is
well settled that the First Amendment mandates closer scrutiny of government restrictions
on speech than of its regulation of commerce alone. Greater New Orleans Broad. Assn v.
United States, 527 U.S. 173, 193 (1999).
21. See supra note 20 and accompanying text.
22. Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981).
23. Id. at 509 (We likewise hesitate to disagree with the accumulated, common-sense
judgments of local lawmakers and of the many reviewing courts that billboards are real and
substantial hazards to traffic safety.).
24. See generally id.; Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995); Edenfield v.
Fane, 507 U.S. 761, 761 (1993); Zauderer v. Office of Disciplinary Counsel of the Sup. Ct.
of Ohio, 471 U.S. 626 (1985); Ry. Express Agency v. New York, 336 U.S. 106, 106 (1949).
judiciary to review legislative decisions. 25

The second problem of an overly deferential approach to legislative
determinations involves regulations that keep the public ignorant of its
potential commercial choices by suppressing commercial speech. 26 Under
Central Hudson, the courts are unable to inquire into the legislatures
motives for creating the law. 27 This has allowed lawmakers to control
undesirable conduct by restricting commercial speech, especially
advertising of potential socially harmful products. 28 The courts have
labeled this process as paternalism because it keep[s] citizens ignorant
in order to manipulate their choices in the marketplace. 29 Although the
Supreme Court has repeatedly struck down paternalistic restrictions, 30 it
has done so only within the parameters of Central Hudson by rejecting the
25. Cf. Mauro, supra note 5, at 1951-52 (noting the discrepancy between the Courts
current and former position on rational basis scrutiny for commercial speech); see infra text
accompanying notes 189-260.
26. See infra note 29 and accompanying text.
27. When the Supreme Court analyzes the constitutionality of a regulation that burdens
speech protected by the First Amendment, the justices implement three standards of review:
strict scrutiny, intermediate scrutiny through the time, place, and manner test, and
intermediate scrutiny through the Central Hudson test. See Ashutosh Bhagwat, The Test
That Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence, 2007 U. ILL.
L. REV. 783, 784. While Central Hudson is the exclusive test for commercial speech, for all
non-commercial speech cases the trigger to determine which standard to apply is whether
the government regulation is content-based or content-neutral. See id. at 794. A content-
based restriction receives strict scrutiny; a content-neutral restriction receives intermediate
scrutiny via the time, place, and manner test. See id. at 784. The Courts concede that the
time, place, and manner restriction is more lenient than the Central Hudson test for
commercial speech, as the former gives more deference to the legislature. See, e.g.,
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 516-17 (1981). The policy behind
these distinctions is that a restriction based on the content of the speech is subject to a much
stronger judicial analysis because the courts must determine the motives of the legislature in
creating the restriction. SULLIVAN & GUNTHER, supra note 16, at 995 (When regulations are
subject to strict judicial scrutiny, which requires a showing of compelling [governmental]
ends and the unavailability of less restrictive means, the government virtually always loses
and the speaker virtually always wins.). Thus the lower standard of intermediate review
requires less inquiry into the regulation. See SULLIVAN & GUNTHER, supra note 16, at 995.
28. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 484 (1996) (striking
down Rhode Islands ban on alcohol price advertising because it did not directly advance
the state interest in promoting temperance).
29. ROGER A. SHINER, FREEDOM OF COMMERCIAL EXPRESSION 239 (2003) (citing 44
Liquormart, 517 U.S. at 518-26 (Thomas, J., concurring)).
30. See, e.g., Kenneth T. Lopatka, A Contemporary First Amendment Analysis of the
NLRA Section 8(A)(2)-2(5) Anachronism, 2 CHARLESTON L. REV. 1, 57 (2007); Lloyd L.
Drury, III, Disclosure Is Speech: Imposing Meaningful First Amendment Constraints on
SEC Regulatory Authority, 58 S.C. L. REV. 757, 761 (2007).
regulation through a failure to meet one of the four prongs of the test. 31
None of these prongs address paternalism specifically, so the Court has
become increasingly creative and inconsistent in finding avenues within
Central Hudson to remove paternalistic legislation. 32
These two chief problemsimpermissibly lowering the level of
scrutiny for commercial speech evaluation and Central Hudsons lack of a
method for the court to examine the legislatures motives when confronted
with a paternalistic regulationshould be remedied through a revision of
the third prong of the Central Hudson test. 33 The third prong requires that
the regulation may not be sustained if it provides only ineffective or
remote support for the governments purpose. 34 As Metromedias
common sense standard has given courts the green light to use exactly
this prohibited ineffective or remote support, 35 this Note will accordingly
refute the ability of the government to use common sense as proof of its
reasoning for implementing its restriction on commercial speech. 36
The purpose of the First Amendment is to provide
countermajoritarian protection of speech through judicial insulation. 37 The
Court has the constitutional duty to provide clear standards through which
courts should implement an informed, thoughtful, and standardized
analysis to determine whether the legislature has produced sufficient
evidence. 38 Within this duty of engaging in an informed analysis arises the
duty to determine (1) that the regulation is effective (direct advancement)
in consideration of its harms, 39 and (2) that the regulation is not
31. The Court has yet to develop any specific manipulation of the Central Hudson test
to address paternalistic concerns. See 44 Liquormart, 517 U.S. at 517-18 (Scalia, J.,
concurring) (noting Justices Scalia and Thomass discomfort with the Central Hudson test
for paternalistic governmental policies, but lack of the wherewithal to declare Central
Hudson wrongor at least the wherewithal to say what ought to replace it).
32. See infra Parts II.D, III.B.
33. See infra Parts IV-V.
34. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of N.Y., 447 U.S. 557, 564
(1980).
35. Id.; see discussion infra Part II.B.1.
36. Common sense is the collection of prejudices acquired by age eighteen. David
Robson, Hey Einstein! Common Sense Has Turned Out To Be Quite Uncommon, DAILY
EXPRESS, Apr. 23, 2007, available at 2007 WLNR 7619948 (quoting Albert Einstein).
37. See Charles R. Lawrence III, Forbidden Conversations: On Race, Privacy, and
Community (A Continuing Conversation with John Ely on Racism and Democracy), 114
YALE L.J. 1353, 1391 (2005).
38. See generally Chapman v. United States, 365 U.S. 610, 622 (1961) (Clark, J.,
dissenting).
39. See infra Parts II.B-C, III.A.
paternalistic. 40 The Court should create a more stringent safeguard to

protect commercial speech by requiring the government to produce
material evidence to show its reasoning for curtailing commercial
speech. 41 This Notes proposed material evidence standard will remedy
both of the articulated problems that currently allow courts to defer to the
legislature. 42
BACKGROUND
II. Central Hudson and Its Progeny

The watershed decision of Central Hudson has been shaped and
molded by subsequent Supreme Court cases about commercial speech. 43
The Court has attempted to adhere to the parameters of the test, but justices
and critics alike have agreed that a measure of analytical inconsistencies
run through key Central Hudson interpretive cases. 44 This section will
explain the Central Hudson doctrine and discuss subsequent cases, first
within the common sense framework and then within the paternalistic
framework.
A. Central Hudsons Establishment of the Commercial Speech

Test
The Supreme Court, plagued by its precedent based on case-by-case
circumstances and its failure to develop a concrete rule for commercial
speech, handed down the Central Hudson decision to provide a more
stringent framework for commercial speech analysis. 45 Central Hudson Gas
& Electric, a public utility company, sought to advertise its services to the
public; however, the New York Public Service Commission completely
banned promotional advertising of a utility. 46 The Commission asserted
two
40. See infra Parts II.D, III.B.

41. See generally Michael Hoefges, Protecting Tobacco Advertising Under the
Commercial Speech Doctrine: The Constitutional Impact of Lorillard Tobacco Co., 8
COMM. L. & POLY 267, 305-06 (2003) (noting that a lack of a clear evidentiary standard
under Central Hudson has left the requirement subject to the discretion and whims of
courts . . . ).
42. See infra Parts IV-V.
43. See infra Part II.B-D.
44. See sources cited supra note 5.
561-66 (1980).
46. See id. at 557.
state interests that justified its advertising ban: a concern for energy
conservation on the grounds that advertising increased the demand for
energy, and an interest in fairness of rates for consumers. 47
The Court advanced a four-part analysis to measure the validity of the
Commissions interest against the protections of commercial speech. 48
First, the speech must be actually protected by the First Amendment, which
means it must address lawful activity and not be misleading. 49 Second, the
governmental interest in regulating the speech must be substantial. 50 Third,
the regulation must directly advance the asserted governmental interest. 51
Fourth, the regulation should not be more extensive than necessary to serve
the governments interest. 52
In applying this test, the Court first found that the regulations fulfilled
the first two prongs. 53 The Court then analyzed the third prong and
examined the causal relationship between the States interests and the
advertising ban. 54 It first rejected the Commissions interest of rate equity
and efficiency because this concern did not provide a constitutionally
adequate reason for restricting protected speech. 55 The holdings language
indicated hazy parameters of the third causation prong: The link between
the advertising prohibition and appellants rate structure is, at most,
tenuous. The impact of promotional advertising on the equity of appellants
rates is highly speculative. . . . Such conditional and remote eventualities
simply cannot justify silencing appellants promotional advertising. 56 This
47. Id. at 568 ([P]romotional advertising will aggravate inequities caused by the failure
to base the utilities rates on marginal cost . . . . If peak demand were to rise, the absence of
marginal cost rates would mean that the rates charged for the additional power would not
reflect the true costs of expanding production.).
48. See id. at 566.
49. See id.
50. Id. The substantial element of this test is virtually never at issue in subsequent cases
interpreting Central Hudson. See, e.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
507-08 (1981) (It is far too late to contend [a lack of substantial government interest] with
respect to either traffic safety or esthetics.) (citing a string of cases that assert the
substantiality of such interests).
51. Cent. Hudson, 447 U.S. at 566. [T]he regulation may not be sustained if it provides
only ineffective or remote support for the governments purpose. Id. at 564.
52. Id.
53. See id. at 566-69 (deeming that the speech was not inaccurate or related to unlawful
activity, and that the states concern about fair and efficient rates was a substantial
governmental interest).
54. Id. at 569.
55. Id.
56. Id.
finding, however, was not fatal to the fourth prong analysis since the Court
did find appropriate causation in the energy conservation interest. 57 It held
that the Commissions order directly advanced the States interest in energy
conservation due to the clear connection between advertising and demand
for electricity. 58
Moving on to the final prong addressing the necessary extent of the
regulation, the Court decided that the order improperly reached all
promotional advertising regardless of the impact on the energy use. 59 The
Court declared that the Commission had not shown that the alternative of
using more limited means to regulate the utility would not accomplish the
desired result. 60
This Notes discussion is limited to the Central Hudson evidentiary
standard as implemented through the third prong of the test, that the
regulation must directly advance the State interest. Further explanation of
cases interpreting Central Hudson will be confined to this third prong
addressing causation.
B. The Emergence of Common Sense Legislative Judgment
1. Metromedia v. City of San Diego Defers To Common-

Sense Judgment of Local Legislatures. 61
Metromedia, Inc. v. City of San Diego could very well be the skeleton
in the Supreme Courts closet of commercial speech decisions. As a
plurality ruling, the Court was split on the exact analysis to apply to San
Diegos restrictions on outdoor billboards. 62 Metromedia brought a
constitutional challenge to San Diegos ban on billboards, the purpose of
which was to eliminate the traffic hazards by removing distracting sign
displays and to promote aesthetics. 63 The ban created two major
prohibitions: First, while it permitted onsite commercial billboards that
57. Cent. Hudson, 447 U.S. at 569.

58. Id.
59. See id. at 569-70.
60. Id. at 570.
61. 453 U.S. 490, 509 (1981).
62. Id. at 490-92.
63. Id. at 493. The Metromedia Court did not consider regulations that touch on
aesthetics and traffic hazards to be paternalistic because the city was regulating the
noncommunicative aspects of a medium of expression, not the information the billboard
advertisers sought to transmit. Dale Carpenter, The Antipaternalism Principle in the First
Amendment, 37 CREIGHTON L. REV. 579, 599 (2004) (quoting Metromedia, 453 U.S. at 517).
identify the name of the occupant or goods available on the premises, it

banned similar billboards located offsite; second, it generally prohibited
signs carrying noncommercial messages. 64
The plurality of Justices White, Stewart, Marshall, and Powell
deferred to the legislative judgment in the context of commercial speech by
upholding a portion of the regulation because they hesitate[d] to disagree
with the accumulated, common-sense judgments of local lawmakers and of
the many reviewing courts that billboards are real and substantial hazards
to traffic safety. 65 Yet the plurality struck down another portion of the
regulation prohibiting noncommercial speech due to the citys failure to
explain how or why noncommercial billboards located in places where
commercial billboards are permitted would be more threatening to safe
driving or would detract more from the beauty of the city. 66 Therefore,
according to the plurality, common sense judgments were acceptable to
uphold a restriction on commercial speech, but not to uphold a restriction
on noncommercial speech. 67
San Diego presented evidence of harm from commercial billboards by
pointing to legislative judgment, whichalthough deemed meagerwas
sufficient to meet the third Central Hudson prong. 68 The Court held that
[i]t is not speculative to recognize that billboards by their very nature,
wherever located and however constructed, can be perceived as esthetic
harm. 69 It furthermore cited the Railway Express Agency v. New York
deference to legislative judgment, hesitating to disagree with the
accumulated, common-sense judgments of local lawmakers. 70
Justices Brennan and Blackmun concurred in the opinion but found
that the pluralitys bifurcated approach raised serious First Amendment
problems and relied on a distinction between commercial and
noncommercial speech unanticipated by our prior cases. 71 They would
have struck down the entire ordinance because the city had not asserted
adequate evidence to justify its substantial restriction on the protected
activity of both commercial and noncommercial speech. 72 The justices
64. Metromedia, 453 U.S. at 493 & n.1.

65. Id. at 509.
66. Id. at 513.
67. See id.
68. See id. at 508-09.
69. Id. at 510.
70. Metromedia, at 509 (citing Ry. Express Agency v. New York, 336 U.S. 106, 109
(1949)).
71. Id. at 522.
72. See id. at 528.
expressly rejected the pluralitys deference to common sense judgments of

the legislature: I would not be so quick to accept legal conclusions . . . as
an adequate substitute for evidence in this case that banning billboards
directly furthers traffic safety. 73
2. Edenfield v. Fane Requires Evidence Beyond Mere

Speculation and Conjecture. 74
The next Supreme Court case that interpreted the third prong of the
Central Hudson test was Edenfield v. Fane. 75 A certified public accountant
(CPA) brought this action challenging the Florida Board of Accountancys
prohibition on direct solicitation by CPAs to obtain new clients. 76 The
Court invalidated the prohibition under the third prong of Central Hudson
because the Board did not demonstrate through studies or other evidence
that the ban directly and materially advanced its asserted interests in
preventing fraud or overreaching. 77 It also rejected an affidavit by a former
Board chairman on the grounds that it contained solely conclusory
statements that add little if anything to the Boards original statement of its
justifications. 78
In further evaluating the third Central Hudson prong for causation,
the Court conducted a closer look into the amount of evidence the
government must assert to uphold its burden in proving its interest for
creating the legislation. 79 This burden is not satisfied by mere speculation
or conjecture; rather, a governmental body seeking to sustain a restriction
on commercial speech must demonstrate that the harms it recites are real
and that its restriction will in fact alleviate them to a material degree. 80
The Court drew its support for this standard from Zauderer v. Office of
Disciplinary Counsel of the Supreme Court of Ohio, 81 decided after
Metromedia, in which the Court found that the State of Ohios arguments
for preventing attorneys from using illustrations in advertising amount to
little more than unsupported assertions and lacked citation to any evidence
or authority. 82
73. Id. (emphasis omitted).

74. 507 U.S. 761, 770-71 (1993).
75. See id.
76. See id. at 763-74.
77. Id. at 770-71.
78. See id. at 771.
79. See id. at 770-71.
80. Edenfield, 507 U.S. at 770-71.
81. 471 U.S. 626 (1985).
82. Id. at 648.
Perhaps the most important decree that emerges from Edenfield is the
Courts reminder of the appropriate scrutiny standard through which
commercial speech should be evaluated. 83 Unlike rational-basis review,
the Central Hudson standard does not permit us to supplant the precise
interests put forward by the State with other suppositions. 84
3. Florida Bar v. Went for It, Inc. Furthers the Common

Sense Standard in Dicta. 85
The next Supreme Court case that cited to the ability to use common
sense for the third prong of Central Hudson was Florida Bar v. Went for
It, Inc. 86 Unlike Metromedia, the Court here did not substantively use
common sense to uphold the governments articulation of harm. 87 Instead,
it found that the governmental interest asserted in preventing attorneys
direct-mail solicitation did not suffer such speculative infirmities because
the Florida Bar asserted a 106-page summary of statistical support of the
governments interest. 88 The regulation thus directly and materially
advanced the interest. 89
In responding to the dissenters claim that the Bar study was
incompeten[t], 90 the majority launched into dicta that addressed the
amount of evidence the government should be required to assert. 91 The
Court would not require that empirical data come to [it] accompanied by a
surfeit of background information. 92 In other First Amendment situations,
83. See Edenfield, 507 U.S. at 767-68.

84. Id. (citing Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)
(finding that the Central Hudson test is far different from the rational basis test used for
the Fourteenth Amendment equal protection analysis)).
85. See 515 U.S. 618, 628 (1995).
86. See id.
87. Compare id. at 626, with supra note 65 and accompanying text.
88. Florida Bar, 515 U.S. at 626. The summary contained data that supported the Bars
assertions that the public view of attorney direct-mail solicitations shortly after accidents
reflected badly on the profession because it was an intrusion of privacy. See id. at 626-27.
The dissent found fault with this data for its failure to include actual surveys, indications of
sample size, explanations of methodology, et cetera. Id. at 640-41 (Kennedy, J., dissenting)
(Our cases require something more than a few pages of self-serving and unsupported
statements by the State to demonstrate that a regulation directly and materially advances the
elimination of a real harm when the State seeks to suppress truthful and nondeceptive
speech.).
89. See id. at 628.
90. Id. at 640 (Stevens, Kennedy, Souter, Ginsburg, JJ., dissenting).
91. See id. at 628.
92. Id.
the Court said, it allowed the government to justify its speech restriction
with reference[s] to studies and anecdotes pertaining to different locales
altogether, or even, in a case applying strict scrutiny, to justify restrictions
based solely on history, consensus, and simple common sense. 93
C. Recent Supreme Court Interpretations of the Third Central

Hudson Prong
Within the framework of the third Central Hudson direct
advancement prong, the Supreme Court has given some, although
minimal, indication of the amount of evidence it will require the
government to put forth. 94 The following cases demonstrate a complete
survey of the Courts interpretation of the states burdens to show third-
prong causation.
1. Ibanez Emphasized That the States Burden is Not

Slight. 95
Sylvia Ibanez, a member of the Florida Bar, noted in her law practice
advertisements that she was a Certified Public Accountant (CPA) by
placing the letters CPA next to her name in her letterheads and yellow
page listings. 96 Although Ms. Ibanezs communication was truthful, the
Board of Accountancy reprimanded her for engaging in misleading
advertising. 97
In Ibanez v. Florida Department of Business and Professional
Regulation, Board of Accountancy, the Court cited both Edenfield and
Zauderer in explaining the third prong, stating that [t]he States burden is
not slight; the free flow of commercial information is valuable enough to
justify imposing on would-be regulators the costs of distinguishing the
truthful from the false, the helpful from the misleading, and the harmless
from the harmful. 98 It then struck down the Boards regulation because
93. Id. (citations omitted) (quoting Burson v. Freeman, 504 U.S. 191, 211 (1992)). The
Burson plurality upheld under strict scrutiny a statute that prohibited display of campaign
materials within 100 feet of the entrance of a polling place on election day. Burson, 504
U.S. at 211.
94. See infra Part II.C.7.
95. Ibanez v. Florida Dept of Bus. & Profl Regulation, Bd. of Accountancy, 512 U.S.
136, 143 (1994).
96. Id. at 138.
97. Id. The Boards misleading advertising charge against Ms. Ibanez claimed that she
was not practicing public accounting within the regulatory parameters of the Public
Accountancy Act. Id. at 141.
98. See id. at 143 (quoting Zauderer v. Office of Disciplinary Counsel of the Sup. Ct. of
Ohio, 471 U.S. 626, 646 (1985)).
the Court had never sustained a regulation on constitutionally protected

speech based on a record so bare as the one on which the Board relies
here. 99 The Court also noted the risks that accompanied upholding the
Boards regulation: that commercial speech restraints would be tolerated by
objectives that could not alone uphold a burden on commercial speech. 100
2. Coors Brewing Found the Third Prong Standard to Be

Critical. 101
At issue in Rubin v. Coors Brewing Co. was a provision of the
Federal Alcohol Administrations (FAA) act that prohibited beer labels
from displaying alcohol content. 102 In the face of the commercial speech
challenge, the government asserted what the Court considered to be a
substantial interest in preventing strength wars by beer brewers who
might seek to compete for customers on the basis of alcohol content. 103
Although the FAAs interest was substantial, the Court flatly rejected
the claim that the regulation advanced its interest in a direct and material
way. 104 The agency attempted to support the third Central Hudson prong
by claiming it was common sense that restricting the advertising of a
product characteristic, such as alcohol content, would decrease the
consumers selection of that product based on that trait. 105
In denying the FAAs common sense claim, the Supreme Court
focused on the third prong by finding it to be critical, citing the Edenfield
mere speculation and conjecture standard. 106 The Court found the FAAs
regulation to be irrational[] due to its unique and puzzling regulatory
framework [that] ensures that the labeling ban will fail to achieve that
end. 107 In essence, the Court concluded that no credible evidence had been
asserted to lead to the determination that allowing alcoholic content display
on beer labels would actually promote strength wars. 108 Not only did the
FAA attempt to use common sense to justify its restriction, but it also
99. Id. at 148-49. The Board pointed to a regulation in the Administrative Code that
prohibited using a specialist designation unless it was accompanied by a lengthy disclaimer.
Id. at 146. Yet the Court found that the Board still failed to point to any harm that is
potentially real, not purely hypothetical and thus found the action to be unjustified. Id.
100. Id. at 149 (citing Edenfield v. Fane, 507 U.S. 761, 771 (1993)).
101. Rubin v. Coors Brewing Co., 514 U.S. 476, 487 (1995).
102. Id. at 478-79.
103. Id. at 483.
104. Id. at 487.
105. Id.
106. Id.
107. Coors Brewing, 514 U.S. at 489.
108. See id.
submitted anecdotal evidence and educated guesses that merely

suggested that competition based on alcohol content otherwise would
burst out of control without the prohibition. 109 Yet in reality, the Court
noted that strength wars had been absent from the community and such
absence could be attributable to any number of factors. 110
3. 44 Liquormart Added the Requirement of Significant

Advancement to Uphold the Third Prong.
Rhode Island created a ban on advertising in any manner
whatsoever the price of alcoholic beverages in the state, with the
exception of price displays not visible from the street. 111 The state asserted
the interest of promoting temperance to uphold the prohibition. 112 The
Court, drawing upon Edenfields requirements that the regulation must
advance the states interest to a material degree, held in 44 Liquormart v.
Rhode Island that the evidentiary burden on Rhode Island was particularly
great given the states wholesale suppression of truthful, nonmisleading
information. 113 The state must thus show that the price advertising ban
will significantly reduce alcohol consumption. 114
The Court employed a logical approach to the market factors of price
advertising and demand. 115 It found that: (1) a prohibition against price
advertising will tend to maintain higher prices, and (2) the state can
reasonably assume that demand will decrease when a higher price level
prevails. 116 The prohibitions failure to meet the third prong was the
missing link between demand and temperance. 117 A lack of any findings
of fact, or indeed any evidentiary support whatsoever failed to provide the
Court with sufficient information to agree with the assertion that the price
advertising ban will significantly advance the States interest in promoting
temperance. 118
109. Id. at 490.

110. Id.
111. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 (1996).
112. Id. at 504.
113. Id. at 505.
114. Id. (emphasis in original).
115. See id.
116. Id.
117. See 44 Liquormart, 517 U.S. at 505.
118. Id. The record does indicate that the ban may have some impact on purchasing
patterns; however, the record shows no evidence that it will significantly impact such
marketwide consumption. Id. at 506.
44 Liquormart went one step further in explaining the lack of record

evidence. 119 It found that any conclusion the Court itself could make about
the impact of price advertising prohibition on temperance would require it
to engage in the sort of speculation and conjecture that is an
unacceptable means of demonstrating that a restriction on commercial
speech directly advances the States asserted interest. 120
4. Greater New Orleans Upheld the Right of the Audience

to Assess the Value of Accurate Information.
A provision of the Communications Act was at issue in Greater New
Orleans Broadcasting Assn, Inc. v. United States, which prohibited
television and radio broadcasting of lottery advertisements in states that did
not allow casino gambling. 121 The broadcasting association sought to
advertise lawful casino gambling in Louisiana and Mississippi, but because
the advertisements might be heard in states where casino gambling was
unlawful (Texas and Arkansas), the promotions were prohibited under the
Act. 122
The Court struck down the regulation, even in the face of substantial
governmental interests of reducing the social costs associated with
gambling and assisting states that prohibit gambling. 123 It held that the
respondents cannot overcome the presumption that the speaker and the
audience, not the Government, should be left to assess the value of accurate
and nonmisleading information about lawful conduct. 124
In evaluating the third prong, the Court explicitly stated that it would
not resolve the issue of whether the record evidence satisfied the standard
of proof under Central Hudson because the flaw in the Governments case
is more fundamental. 125 Although the Court did not take the opportunity
to clarify the standard of proof, it did establish policy grounds that are
relevant to the common sense analysis. 126 The Court noted that the
challenged regulation should indicate that its proponent carefully
119. See id. at 507.

120. Id. (quoting Edenfield v. Fane, 507 U.S. 761, 770 (1993)). This sort of speculation is
not appropriate when the State takes aim at accurate commercial information for
paternalistic ends. Id.; see also infra Part II.D.
121. 527 U.S. 173, 177 (1999).
122. Id. at 180-81.
123. Id. at 174.
124. Id. at 195. The government showed no sound reason for any meaningful
relationship of the interests asserted. Id. at 193.
125. Id. at 190.
126. See id. at 191-92.
calculated the costs and benefits associated with the burden on speech
imposed by its prohibition. 127 Furthermore, the holding implicates that the
governments purpose to suppress truthful speech creates a particularly
great need for an evidentiary showing. 128
5. Lorillard Tobacco Affirmed Food and Drug

Administrations (FDA) Findings About Youth and
Tobacco Use Under the Third Prong.
The Attorney General in Lorillard Tobacco Co. v. Reilly produced an
amount of evidence that sufficiently met the third prong of the Central
Hudson test. 129 His decision to regulate advertising of smokeless tobacco
and cigars to combat minors use of such products was not based on mere
speculation and conjecture; rather, the Court found that his choice was
based on ample documentation. 130 Six Supreme Court justices validated
findings that: (1) advertising and labeling play a significant role in a young
persons decision to use tobacco products; 131 (2) children smoke fewer
brands of cigarettes than adults, which are choices that directly track the
most heavily advertised brands, unlike adult choices, which are more
dispersed and related to pricing 132 ; (3) a dramatic shift has occurred in the
patterns of smokeless tobacco use from older to younger users in the last
thirty years; 133 and (4) a link exists between advertising and demand for
cigars. 134 The Court ultimately struck down the regulations under the fourth
prong because they were unconstitutionally broad. 135
Justices Kennedy, Scalia, and Thomas did not agree with the
majoritys decision about the third prong, and Justice Thomas provided
127. Greater New Orleans, 527 U.S. at 188 (quoting Cincinnati v. Discovery Network,
Inc., 507 U.S. 410, 417 (1993)).
128. Joseph A. Wetch, Jr., Broadcasters Come Up All 7s: Advertising of Casinos and
Gambling, Greater New Orleans Broadcasters Association v. United States, 76 N.D. L. REV.
161, 187 (2000) (citing 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 505 (1996)).
129. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 561 (2001). The Court struck down
portions of the regulation under the fourth prong (reasonable fit tailoring) of the Central
Hudson test. Id. Any further discussion of its reasoning under this analysis is irrelevant to
this Note.
130. Id. (internal citation omitted).
131. Id. at 558.
132. Id.
133. Id. at 559.
134. Id. at 560.
135. See Lorillard Tobacco, 533 U.S. at 561.
detailed reasoning about the various shortcomings. 136 Justice Thomas

would have first held that the regulation was subject to strict scrutiny based
on the antipaternalism principles discussed in Part II.D. 137 Even under the
reduced (intermediate) scrutiny of the Central Hudson test, he argued that
the bans on signs displayed below five feet and prohibition of outdoor cigar
advertising lack even a minimally rational relationship to any conceivable
interest. 138 Justice Thomas also questioned the ability of the evidence to
clearly show that advertising affects minors today, in light of findings that
illustrated smokeless tobacco use has decreased among high school
students during the 1990s. 139
6. Thompson Required Commercial Speech Restriction to

Be Necessary as Opposed to Merely Convenient. 140
The Food and Drug Administration (FDA) exempted compounded
drugs 141 from its approval standard so long as the providers did not
advertise or promote the compounded drugs. 142 Its concern was that
products distributed without the FDAs approval could harm the public
health, but adhered to a policy that allowed pharmacies to compound drugs
pursuant to a prescription. 143 The FDA argued that advertising was a fair
proxy to prevent large-scale production of compounded drugs. 144
Thompson v. Western States Medical Centers interpretation of the
provision found that advertising triggered the FDA approval requirement
136. Id. at 571 (Kennedy & Scalia, JJ., concurring in part) (finding that a third prong
inquiry is not necessary, yet noting that considerable doubt existed as to whether the
prong could be fulfilled); id. at 572-90 (Thomas, J., concurring in part).
137. See id. at 575 (Thomas, J., concurring in part).
138. Id. at 583. For example, Justice Thomas found it counterintuitive that children
were either under five feet tall (the median height for 12-year-olds is five feet) or that they
would not raise their view above eye level. Id. at 582.
139. Id. at 584 (This finding casts some doubt on whether the States interest in
additional regulation is truly compelling.).
140. Thompson v. W. States Med. Ctr., 535 U.S. 357, 373 (2002).
141. Compounded drugs are drugs mixed in pharmacy laboratories to fill doctors
prescriptions for drugs that are not available in standard dosage or form. Todd Zwillich,
Closer Scrutiny Urged for Compounded Drugs, WEBMD HEALTH NEWS, Mar. 24, 2005,
available at http://www.webmd.com/news/20050324/closer-scrutiny-urged-for-
compounded-drugs.
142. Thompson, 535 U.S. at 360.
143. Id. at 363.
144. Id. at 370-71.
for compounded drugs. 145 It further held that the FDA showed no reason
why advertising alone would be sufficient to prevent compounding from
occurring on a large-scale basis. 146
Nowhere . . . is there any explanation of why the Government
believed forbidding advertising was a necessary as opposed to
merely convenient means of achieving its interests. . . . If the
First Amendment means anything, it means that regulating
speech must be a lastnot firstresort. Yet here it seems to
have been the first strategy the Government thought to try. 147
The explicit concept of the Central Hudson standard as stricter than
minimum rationality review reemerges: Thompson finds that although
Congress could have conceivably enacted the ban to advance its interest
in public health, we have generally only sustained statutes on the basis of
hypothesized justifications when reviewing statutes merely to determine
whether they are rational. 148 The Court reaffirms that the Central Hudson
test is significantly stricter than rational basis, and the government must
not only identify the substantial interest, but also show that the regulation
directly advances the substantial interest. 149
7. A Conclusion of the Current Status of the Third Central

Hudson Prong
The current status of common sense and the third direct
advancement prong of the Central Hudson test is by no means clear. 150
The Supreme Court is renowned for limiting its precedent to the facts of the
cases before it. 151 For example, cases that involve regulation of
professional
145. Id. at 370.

146. Id. at 373.
147. Id.
148. Thompson, 535 U.S. at 373.
149. Id. at 374.
150. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 574 (2001) (Thomas, J.,
concurring in part) ([T]he Court has followed an uncertain course [since the development
of the commercial speech doctrine]much of the uncertainty being generated by the
malleability of the four-part balancing test of Central Hudson.); see also Hoefges, supra
note 41, at 267 (noting the complexity of Central Hudsons intermediate scrutiny test as
applied to governmental regulations).
151. It is . . . an established part of our constitutional jurisprudence that we do not
ordinarily reach out to make novel or unnecessarily broad pronouncements on constitutional
issues when a case can be fully resolved on a narrower ground. Greater New Orleans
Broad. Assn, Inc. v. United States, 527 U.S. 173, 184 (1999).
solicitation (e.g., Ibanez) seem to belong to their own sphere of commercial

speech jurisprudence. 152 Or in other cases, a broad restriction of
commercial speech requires the Court to proceed with special care. 153
Despite the ad hoc nature of the Courts decisions, a foundation for
the third prong can be extrapolated. 154 The standard of proof is a sliding
scale under commercial speech jurisprudence. 155 The more logical the
restriction appears to the justices, the more lenient they will be with the
evidence supporting the restriction. 156 This subjective approach gives
virtually no guidance to legislative bodies when drafting laws that burden
commercial speech. 157 If the justices perceive that the problem being
addressed by the law is not speculative, then the legislature does not have
to spend time compiling evidence of harm and proof of how the law might
fix it; 158 if the justices find the law is based on unsupported assertions,
then the legislature should be prepared to put forth record evidence of the
basis for creating the law. 159
For example, the government likely will not have to prove under the
third prong that advertising stimulates demand for the promoted
products. 160 But the link between demand and other objectives proves
problematic. A higher evidentiary standard will be triggered, for example,
when the government attempt[s] to propound fanciful or dubious
propositions, such as the presumption that the placement of alcohol content
information . . . would set off strength wars . . . [or] that keeping
consumers ignorant of alcohol prices [would] bring them to parsimonious
sobriety. 161
152. See Mauro, supra note 5, at 1951 n.134 (noting that restrictions on lawyer
advertising seem to merit a different standard than traditional commercial speech
restrictions).
153. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 504 (1996) (citing Cent.
Hudson Gas & Electric Corp. v. Pub. Serv. Commn of N.Y., 447 U.S. 557, 566 n.9 (1980)).
154. See infra notes 155-161 and accompanying text.
155. Compare Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995), with Thompson v.
W. States Med. Ctr., 535 U.S. 357 (2002), and Lorillard Tobacco, 533 U.S. 525, and 44
Liquormart, 517 U.S. 484.
156. Compare sources cited supra note 165.
157. See supra text accompanying note 38.
158. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 510 (1981).
159. See Zauderer v. Office of Disciplinary Counsel of the Sup. Ct. of Ohio, 471 U.S.
626, 648 (1985).
160. See Donald W. Garner, Fighting the Tobacco Wars on First Amendment Grounds,
27 SW. U. L. REV. 379, 385 (1998).
161. Id. at 384-85 (footnote omitted).
D. The Recurring Court Aversion to Paternalistic Restrictions

The Supreme Court has recently embraced a policy of striking down
paternalistic restrictions. 162 One working definition of paternalism is a
restriction on otherwise protected speech justified by the governments
belief that speaking or receiving the information in the speech is not in
citizens own best interests. 163 Yet the Supreme Court has not advanced
such a clear definition; the body of paternalism in the commercial speech
doctrine is primarily comprised of a hodge-podge of concurrences, dissents,
and one-lined references to the principle in holdings. 164
Thompson v. Western States Medical Center provides the most insight
to the paternalism principle because of the depth of treatment in the
majority opinion and the recency of the decision. 165 The Court struck down
the FDAs restriction of compounded drugs because, among other things, it
rejected the notion that the Government has an interest in preventing the
dissemination of truthful commercial information in order to prevent
members of the public from making bad decisions with the information.166
The alternative to the highly paternalistic approach, the Court said, was the
theory that people are able to perceive their own best interests when they
are well-informed, which derives from open channels of communication. 167
The choice of opening or closing the channels of information belongs to
neither the judiciary nor the legislature. 168 It is precisely this kind of
choice, between the dangers of suppressing information, and the dangers of
its misuse if it is freely available, that the First Amendment makes for
us. 169 While the legislature is free to make decisions on the professional
standards of pharmacists, it cannot base its decisions on the proposition of
keeping the public ignorant of the speech it is entitled to encounter. 170
162. See Joseph Sanders, The Merits of the Paternalistic Justification for Restrictions on
the Admissibility of Expert Evidence, 33 SETON HALL L. REV. 881, 892 & n.61 (2003)
(First Amendment free speech jurisprudence is an area where anti-paternalistic instincts are
perhaps the strongest.); see also Carpenter, supra note 63, at 650 (emphasizing the hostility
of the First Amendment to paternalistic justifications for speech regulation).
163. See Carpenter, supra note 63, at 650 (emphasis omitted).
164. [T]he Court has never defined paternalism. Id. at 582.
165. See Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002).
166. Id. at 374. However, the governments justification for its restriction was not based
on paternalism. See id. at 370.
167. Id. at 375.
168. See id.
169. Id.
170. See id.
Justice Thomas possessed such a strong aversion to paternalistic

measures that he would use strict scrutiny when evaluating the
restrictions. 171 He argued that interests in keeping the public ignorant are
per se illegitimate and can no more justify regulation of commercial
speech than it can justify regulation of non-commercial speech. 172 The
origination of his crusade to increase protection from paternalistic
restriction derives from Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, Inc. 173 He found the Court sharply rebuffed
the argument that consumers would make irresponsible decisions if they
were left with the power to do so, and that the States protectiveness of its
citizens rests in large measure on the advantages of their being kept in
ignorance. 174
Justice Scalia joined Justice Kennedy in the critique of paternalism in
Lorillard Tobacco. 175 Also, Justice Thomas utilized a content-based
criticism of paternalism by assuming that, even if a lower protection was
permissible for this type of regulation, the government may not engage in
content discrimination for reasons unrelated to those characteristics of the
speech that place it within the category. 176 The states limitations on the
activity were not related to the preservation of a fair bargaining process,
and thus the power to regulate commercial speech was void. 177
The Court also rejected a vice exception to First Amendment
protection in 44 Liquormart. 178 It stressed the dangers in characterizing a
product that poses a threat to public health as a vice 179 due to the ability
171. See Thompson, 535 U.S. at 377 (Thomas, J., concurring).

172. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518 (1996) (Thomas, J.,
concurring); Greater New Orleans Broad. Assn, Inc. v. United States, 527 U.S. 173, 197
(1999) (Thomas, J., concurring).
173. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.
748, 762 (1976). Virginia State Board of Pharmacy was the first Supreme Court decision
that established any constitutional protection for commercial speech. Reza R. Dibadj, The
Political Economy of Commercial Speech, 58 S.C. L. REV. 913, 915-16 (2007).
174. 44 Liquormart, 517 U.S. at 519 (Thomas, J., concurring). But see id. at 517 (Scalia,
J., concurring) ([I]t would also be paternalism for us to prevent the people of the States
from enacting laws that we consider paternalistic, unless we have good reason to believe
that the Constitution itself forbids them.).
175. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 571-72 (2001) (Kennedy &
Scalia, JJ., concurring in part).
176. Id. at 576 (Thomas, J., concurring). For clarification on content distinctions in
speech regulation, see supra note 27 and accompanying text.
177. See id. at 577.
178. See 44 Liquormart, 517 U.S. at 514.
179. Id. [V]ice products include alcoholic beverages, lottery tickets, or playing cards,
that may be lawfully purchased in the open market. Id.
of the legislature to justify censorship by using such a label or requiring

federal courts to create a common law of vice. 180 Justice Stevens also
weighed in on the issue with his concurrence in Coors Brewing. 181 He
noted that the Constitution is most skeptical of supposed state interests
that seek to keep people in the dark for what the government believes to be
their own good. 182
But as the dissenters so loudly complain, the Court has yet to modify
the archaic four-pronged Central Hudson test to better evaluate the
regulations aimed at keeping citizens ignorant. 183 Nor has it provided any
additional insight into the third direct advancement prong since
Thompson. 184 The creation of complex, malleable, and unclear standards
for these two issues have clouded the respective roles of the court, the
proponents of speech, and the state when engaging in commercial speech
analysis. 185
III. The Circuit Split

The Supreme Court is not alone in struggling with constitutional
interpretation under Central Hudson; the circuit courts have also developed
different holdings for the third prong and the paternalism issue. 186 The
following analysis summarizes the past fifteen years of major circuit court
holdings that interpret (a) the third prong of the Central Hudson test and (b)
the paternalism factor in government regulation.
A. Rejecting State Regulation on the Grounds of Speculation

and Conjecture
Edenfield v. Fane and subsequent Supreme Court cases refused to
uphold government regulations that produce evidence that is mere
speculation or conjecture. 187 When faced with various facts and
180. Id.
181. See Rubin v. Coors Brewing Co., 514 U.S. 476, 496-97 (1995) (Stevens, J.,
concurring).
182. See id. at 497.
183. For an example of a proposal to modify the Central Hudson approach to
accommodate some of these principles, see Erin Lenhardt, Note, Why So Glum? Toward a
Fair Balance of Competitive Interests in Direct-to-Consumer Advertising and the Well-
Being of the Mentally Ill Consumers It Targets, 15 HEALTH MATRIX 165, 201-02 (2005)
(advocating a balancing test that focuses on the first Central Hudson prong of
misleading/unlawful communication).
185. See generally Bhagwat, supra note 27.
186. See infra Part III.A-B.
187. See Edenfield v. Fane, 507 U.S. 761, 770-71 (1993).
circumstances, as well as vague guidelines from the Supreme Court, the

circuit courts have arrived at different conclusions about the third prong. 188
According to the Sixth Circuit, a single police affidavit supporting a
ban on parking automobiles with For Sale signs in public streets was
insufficient to uphold the third Central Hudson prong. 189 The city thought
the proscribed activity would cause people to walk into the street and
expose them to harm, but Pagan v. Fruchey took the very strong view that
the city did not present nearly enough evidence to support this assertion. 190
It is [the citys] obligation to provide something in support of its
regulation, and we do not find ourselves free to hold that obligation has
been discharged based on principles of common sense or obviousness,
especially where, as here, all do not agree as to what is obvious or a matter
of common sense. 191
In the Eleventh Circuit, the Florida Bar also attempted to use a single
affidavit from the Bar director to justify its disclaimer requirement for
attorney advertising using Martindale-Hubbell ratings in Mason v. Florida
Bar. 192 The court found that the affiant merely offered simple common
sense: 193
While empirical data supporting the existence of an identifiable
harm is not a sine qua non for a finding of constitutionality, the
Supreme Court has not accepted common sense alone to prove
the existence of a concrete, non-speculative harm. To the
contrary, the law in this field has emphatically dictated that the
rote invocation of the words potentially misleading does not
relieve the states burden to demonstrate that the harms it
recites are real and that its restriction will in fact alleviate them
194
to a material degree.
188. Compare infra notes 195-197 and accompanying text with notes 198-199 and
accompanying text.
189. See Pagan v. Fruchey, 492 F.3d 766, 772 (6th Cir. 2007); see also infra Part V.A.
190. Pagan, 492 F.3d at 778.
191. Id.
192. 208 F.3d 952, 957 (11th Cir. 2000). A Martindale-Hubbell rating is a peer-based
tiered rating system that serves as an objective indicator of an attorneys skills. Evaluate a
Lawyer with Exclusive Martindale-Hubbell Peer Review Ratings,
http://www.martindale.com/xp/legal/About_Martindale/Products_and_Services/Peer_Revie
w_Ratings/ratings.xml (last visited July 30, 2008). The Florida Bar felt that using such
ratings in advertisements could be misleading. Mason, 208 F.3d at 954.
193. Mason, 208 F.3d at 957 (internal quotation omitted); see also Bailey v. Morales, 190
F.3d 320, 324 (5th Cir. 1999) (holding that Texass explicit concession that it relied on
common sensenot data or empirical evidencefailed the third prong inquiry).
194. Mason, 208 F.3d at 957-58 (citations omitted).
The First Circuit case El Dia, Inc. v. Puerto Rico Dept. of Consumer
Affairs found an infirmity similar to Pagan with the states failure to offer
any evidence or anecdotes in support of its restriction. 195 The
government regulation required nonresidents to post a bond to advertise in
Puerto Rico, but did not require residents to post the bond. 196 This did not
withstand Central Hudson scrutiny because no record existed of any
resolution or adjudication requiring execution of a bond posted by a
nonresident advertiser . . . . Plainly, [the government] has failed to
demonstrate that the harm it seeks to avoid with [the regulation] is real. 197
On the other hand, a regulation unsupported by any testimony that the
activity of bail bondsmen solicitation actually caused a problem was still
upheld by the Fifth Circuit under the third prong. 198 Pruett v. Harris
County Bail Bond Bd. said that the inherent dangerousness and problems
caused with bail bondsmen soliciting potential customers on the basis of an
outstanding warrant directly advanced the state interest in preventing the
flight of offenders, preserving evidence, and safety. 199
Two phone surveys of more than 500 individuals indicating perceived
problems with professional advertising were sufficient for the Eleventh
Circuit to uphold the third prong in Borgner v. Brooks. 200 Also, in an
entirely different case, 201 a 106-page study, affidavits from two prominent
individuals in the community, newspaper articles, and statistics about the
number of car crashes were adequate for the Sixth Circuit in Chambers v.
Stengel to sustain third prong scrutiny of a thirty-day, post-accident
prohibition on attorney solicitation. 202
195. El Dia, Inc. v. Puerto Rico Dept. of Consumer Affairs, 413 F.3d 110, 116 (1st Cir.
2005) (quoting Florida Bar v. Went for It, Inc., 515 U.S. 618, 628 (1995)).
196. See id. at 112.
197. See id. at 116; see also Pearson v. Edgar, 153 F.3d 397, 402 (7th Cir. 1998) (finding
no evidence that blockbusting, a panic tactic used by real estate agents to scare
homeowners into selling, is a problem in Illinois).
198. See Pruett v. Harris County Bail Bond Bd., 499 F.3d 403, 411 (5th Cir. 2007). The
court identifies this as the second prong of the Central Hudson test, but for reasons stated in
supra note 9, this Note refers to it as the third prong.
199. Id. at 411. The court ultimately rejected the restriction under the fourth prong due to
the availability of other means the government could use to further its interests. Id. at 412-
13. The court identifies this as the third prong of the Central Hudson test, but for reasons
stated in supra note 9, this Note refers to it as the fourth prong.
200. See Borgner v. Brooks, 284 F.3d 1204, 1212 (11th Cir. 2002). Survey data is
certainly one way to prove the existence of an identifiable harm. Id. at 1211.
201. Kentucky used the exact same 106-page study that the Florida Bar initially asserted
in Florida Bar v. Went for It, Inc. Chambers v. Stengel, 256 F.3d 397, 404 (6th Cir. 2001);
see supra Part II.B.3.
202. See Chambers, 256 F.3d at 404, see also Moore v. Morales, 63 F.3d 358, 362 (5th
Rather than closely looking at the evidence supporting the challenged

regulation, the First Circuit utilized a broader theory of deference to the
contents of New Hampshires ample legislative record in IMS Health Inc.
v. Ayotte to uphold the regulation under the third prong. 203 The court
allowed the legislature to have elbow room to combat a problem of
growing magnitude, which related to the rising costs of pharmaceuticals. 204
The First Amendment requires states to assess their own interests
realistically and to take only reasonable steps in furtherance of these
discerned interests; it does not require Augean feats in order to sustain
regulations restricting commercial speech. 205 The state had accordingly
produced competent evidence to overcome Edenfields bar on
[s]peculation, surmise, or fevered imaginings. 206
Some circuit courts find the third prong has been met when the
causation involves the legislative presumption that advertising increases
consumption. 207 Relying on the roots of this premise from Central Hudson
itself, 208 the Fourth Circuit held in two separate cases that a logical nexus
existed between the state regulation of advertising and the articulated
harm. 209
Cir. 1995) (finding extensive evidence of a great number of complaints against direct mail
solicitation by attorneys within thirty days of an accident); Missouri v. Am. Blast Fax, Inc.,
323 F.3d 649, 654 (8th Cir. 2003) (rejecting the need for empirical studies and finding that
hearings and testimony about the problem, as well as other cases that highlighted the
problem, were adequate to fulfill the third prong); Walraven v. N.C. Bd. of Chiropractic
Examrs, 273 Fed. Appx. 220, 225 (4th Cir. 2008) (holding that a 90-day prohibition on
chiropractors from contacting victims of motor vehicle accidents was supported by
affidavits, exhibits, and testimony).
203. 550 F.3d 42, 59 (1st Cir. 2008). The court identifies this as the second prong of the
Central Hudson test, but for reasons stated in supra note 9, this Note refers to it as the third
prong.
204. Id. at 58.
205. Id.
206. Id. at 55, 57 (citing Edenfield v. Fane, 507 U.S. 761, 770 (1993)).
208. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of New York, 447 U.S. 557
(1980).
209. See Penn Adver. of Baltimore, Inc. v. Mayor & City Council of Baltimore, 63 F.3d
1318, 1325 (4th Cir. 1995) (allowing communities to take minor steps to resolve problems,
even when they cannot conclusively assure the success of their efforts); Anheuser-Busch,
Inc. v. Schmoke, 63 F.3d 1305, 1314 (4th Cir. 1995) (finding that the government does not
need to conclusively prove that the steps undertaken will solve the problem); see infra Part
V.B.
The Third Circuit had a different opinion in The Pitt News v.

Pappert. 210 The court did not dispute the proposition that [] advertising in
general tends to encourage consumption, but it did not find that
prohibiting alcohol beverage advertisements by media associated with
education institutions had the effect of greatly reducing the quantity of
alcoholic beverage ads viewed by underage and abusive drinkers on the Pitt
campus. 211 The Second Circuit also utilized this same line of analysis by
finding the regulation did not substantially further the asserted interest. 212
Bad Frog Brewery, Inc. v. New York State Liquor Authority held that a ban
on a vulgar beer label for the purposes of protecting children would have
virtually no impact given the wide currency of vulgar displays throughout
contemporary society, including comic books targeted directly at
children. 213
Finally, the Ninth Circuit in Valley Broadcasting Co. v. United States
held that a poorly written statute, riddled with exceptions, cannot directly
and materially advance its purpose, since other provisions of the same act
directly undermine and counteract its effects. 214 The court echoed the
irrationality approach of Coors Brewing 215 and found the regulation to be
impossible in furthering the state interest of discouraging public
participation in commercial lotteries. 216
In conclusion, the circuits find a particularly egregious lack of
evidence when the government solely relies on affidavits to prove its
harm. 217 However, if the court finds the prohibited activity to be
particularly dangerous, a failure to illustrate any past examples of harm will
not be dispositive to fulfilling the third prong. 218 If the government can put
forth some kind of study or surveyor even point to one that was used in
another casethis will be sufficient for some courts. 219 The relation of
210. 379 F.3d 96 (3d Cir. 2004).

211. Id. at 107. Note that current Supreme Court Justice Samuel Alito issued this holding
acting as a Third Circuit judge.
212. Bad Frog Brewery, Inc. v. New York State Liquor Auth., 134 F.3d 87, 98-100 (2d
Cir. 1998).
213. Id. at 99.
214. Valley Broad. Co. v. United States, 107 F.3d 1328, 1335 (1997).
215. Supra note 107 and accompanying text.
216. Supra note 107 and accompanying text.
217. See Pagan v. Fruchey, 492 F.3d 766, 772-73 (6th Cir. 2007); Mason v. Florida Bar,
208 F.3d 952, 957 (11th Cir. 2000); El Dia, Inc. v. Puerto Rico Dept of Consumer Affairs,
413 F.3d 110, 116 (1st Cir. 2005).
218. See Pruett v. Harris County Bail Bond Bd., 499 F.3d 403, 411 (5th Cir. 2007).
219. See Missouri v. Am. Blast Fax, Inc., 323 F.3d 649, 654 (8th Cir. 2003); Borgner v.
Brooks, 284 F.3d 1204, 1211 (11th Cir. 2002); Chambers v. Stengel, 256 F.3d 397, 404 (6th
Cir. 2001); Moore v. Morales, 63 F.3d 358, 362 (5th Cir. 1995).
causation to advertising and consumption creates problems for the courts,

but as long as the prohibition has some kind of material effect on the
interests, courts will uphold it. 220
B. Paternalism in the Circuits

The determination of whether the government has restricted speech
because it believes the speech is not good for its citizens can be largely
subjective. 221 Thus, the analysis in this section is confined to the few
circuits that explicitly addressed paternalism.
When individuals can opt-in to protection of a state statute curtailing
commercial speech, paternalism is not implicated because consumers
themselves can seek the prohibition. 222 For example, in Anderson v.
Treadwell, the Second Circuit noted that [t]o the extent that some
commercial speech restrictions are vulnerable out of concerns about
paternalism, the challenged restriction entirely avoids such concerns
because it applies only where homeowners elect to seek its protection. 223
The District of Columbia Circuit found the Food and Drug
Administrations (FDA) reasons for its regulation to be frivolous in
Pearson v. Shalala. 224 The FDA required its approval for any labeling of a
dietary supplement that indicated the supplement was related to a health
condition. 225 It argued that health claims lacking significant scientific
agreement are problematic because they have such an awesome impact
on consumers as to make it virtually impossible for them to exercise any
judgment at the point of sale. 226 The court interpreted the FDAs
justification to treat consumers as if they were under hypnosis, and
promptly rejected it as paternalistic. 227
220. Compare Penn Adver. of Baltimore, Inc. v. Mayor & City Council of Baltimore, 63
F.3d 1318, 1325 (4th Cir. 1995), with Pitt News v. Pappert, 379 F.3d 96, 101 (3d Cir. 2004).
221. See, e.g., Carpenter, supra note 63, at 599 (explaining that a regulation to protect
traffic safety might be paternalistic, but that the Court held it was not because the
prohibition did not extend to communicative aspects of speech).
222. See Anderson v. Treadwell, 294 F.3d 453, 464 (2d Cir. 2002); see also Bland v.
Fessler, 88 F.3d 729, 733 (9th Cir. 1996).
223. Anderson, 294 F.3d at 464.
224. See Pearson v. Shalala, 164 F.3d 650, 655 (D.C. Cir. 1999).
225. Id. at 651.
226. Id. at 655 (emphasis omitted).
227. See id. The court found that the FDAs alternative justification, that customers could
not independently identify the health claims, was more convincing. Id.
With passing reference, the Ninth Circuit regurgitated the policy of

rejecting highly paternalistic restrictions, 228 yet it interpreted the
prohibition on gambling advertising to draw its support from the historical
tradition of regulating commercial lotteries. 229 Valley Broadcasting Co. v.
United States found that the evidence presented related to the pernicious
effects of casino gambling, and accordingly refused to take it upon [itself]
to narrow the governments interest sua sponte. 230
In Association of National Advertisers, Inc. v. Lungren, the Ninth
Circuit provided an extensive list of factors to use when determining
whether a regulation is paternalistic. 231 It required the consideration of the
cogency and character of the regulated class, the transparency of the
claims, their volume and the attendant burden on consumers of monitoring
them, and the capacities and resources of the target audience to
discriminate between truthful and specious claims. 232 In applying these
factors, Lungren upheld the state regulation requiring entities that label
packages as environmentally friendly, such as biodegradable or recyclable,
to meet the states definitions of such terms. 233
Beyond these few cases, the paternalism doctrine is implicated in
virtually every decision among the hundreds issued by circuit courts that
interpret Central Hudson. 234 Paternalism is widely derided in theory but
embraced in fact. 235 Valley Broadcasting exemplifies exactly this
theory/fact distinction. 236 Paternalism triggers hefty First Amendment
consequences when governments proceed under its auspices; the
governments power ebbs when it tells us what to say or hear for own
good [sic]. 237 In light of the paternalistic undertones controlling judicial
decisions and the Supreme Courts failure to incorporate safeguards into
the Central Hudson inquiry, measures should be taken to amend the current
commercial speech standard. 238
228.See Valley Broad. Co. v. United States, 107 F.3d 1328, 1330 (9th Cir. 1997).
229.See id. at 1332.
230.Id.
231.Assn of Natl Advertisers, Inc. v. Lungren, 44 F.3d 726, 734 (9th Cir. 1994).
232.Id. (citations omitted).
233.See id. at 736-37.
234.See generally SHINER, supra note 29, at 242 (noting that paternalism is adverse to
American values of autonomy and liberty).
235. Carpenter, supra note 63, at 650.
236. See supra text accompanying notes 228-230.
237. Carpenter, supra note 63, at 651.
ANALYSIS
IV. The Proposed Material Evidence Test

As the case law described above illustrates, a clear understanding of
the exact principles driving commercial speech policy is difficult to
discern. 239 This Notes proposition of a material evidence standard
mitigates these shortcomings. 240 It creates a more palpable standard for the
amount of evidence the government must put forth to prove why it
implemented the restrictions on commercial speech, and provides a higher
evidentiary standard when the party challenging the restriction perceives
that the regulation is paternalistic. 241 This section will first provide an
overview of the material evidence test and then will explain each of the
elements of the test.
A. An Overview of the Parameters of the Material Evidence

Test
The material evidence test contains two major components. 242 The
first is a procedural standard that requires shifting of the burdens of proof
between the parties to a commercial speech challenge. 243 The second is a
substantive standard that applies to the governments first burden of proof
to justify a speech restriction. 244
1. The Procedural Component Mimics the Burden-Shifting

in McDonnell Douglas.
This test draws its procedure from a case with roots in an entirely
different area of substantive law. McDonnell Douglas Corp. v. Green is a
seminal case in employment law that established a burden-shifting
mechanism to allow courts to determine the allocation of proof in
discrimination cases. 245 The Court established McDonnell Douglas to
remove the artificial, arbitrary, and unnecessary barriers to a plaintiff
proceeding with a cause of action for racial discrimination. 246 The case
specifies three shifting burdens: (1) the complainant must carry the initial
239. See supra Part III.

240. See infra Part V.
241. See infra Part V.
242. See infra Part IV.A.1-2.
243. See infra Part IV.A.1.
244. See infra Part IV.A.2.
245. 411 U.S. 792 (1973).
246. Id. at 801 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)).
burden to establish a prima facie case of racial discrimination; 247 (2) the
burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the employees rejection; 248 and (3) the
complainant has an opportunity to show that the employers stated reason
for his or her rejection was a mere pretext. 249 In short, [the complainant]
must be given a full and fair opportunity to demonstrate by competent
evidence that the presumptively valid reasons for his rejection were in fact
a stet for a racially discriminatory decision. 250
Drawing from this framework, the material evidence test implements
a shifting of the burdens. 251 Unlike McDonnell Douglas, the first burden on
the plaintiff is instead on the government because [t]he party seeking to
uphold a restriction on commercial speech carries the burden of justifying
it. 252 This invariably falls upon the government in First Amendment cases,
and thus constitutes the governments initial burden. 253 Next, the burden in
the material evidence test shifts to the individual challenging the
restriction (usually the plaintiff) to show that the governments reasoning
for its restriction is actually a pretext for controlling undesirable conduct by
restricting speech. 254 In other words, the procedural framework of this test
would allow the plaintiff to claim that the restriction is paternalistic, instead
of the court itself determining from precedent and its own views whether
the restriction is paternalistic. 255 Finally, if the plaintiff has met the burden
of showing pretext/paternalism, the government now has the burden to
show that its regulation is not paternalistic and thus has no pretext for
enacting the restriction. 256
247. Id. at 802.

248. Id.
249. Id. at 804.
250. Id. at 805.
251. See McDonell Douglas Corp., 411 U.S. at 802, 804-05.
252. Edenfield v. Fane, 507 U.S. 761, 770-71 (1993) (quoting Bolger v. Youngs Drug
Products Corp., 463 U.S. 60, 71 n.20 (1983)) (alteration in original).
253. See id. at 770 (quoting Bolger, 463 U.S. at 71 n.20 (1983) (It is well established
that the party seeking to uphold a restriction on commercial speech carries the burden of
justifying it.).
254. This additional layer of analysis corresponds with the view that two categories of
commercial speech regulation exist. See, e.g., ARTHUR D. HELLMAN ET AL., FIRST
AMENDMENT LAW: FREEDOM OF EXPRESSION AND FREEDOM OF RELIGION 248 (2006) (noting
the idea that regulations of commercial speech might be evaluated differently).
255. See infra Part IV.C; text accompanying notes 360-362.
256. See infra Part IV.D; text accompanying notes 363-365.
Furthermore, the governments burden to prove a nonpaternalistic

regulation is only triggered when the plaintiff can successfully claim that
the government has legislated a paternalistic restriction. 257 It allows the
parties to put forth more evidence before the courtmuch more than
common senseand acts as a proscriptive measure to caution
legislatures to establish an adequate amount of information if a challenger
to its regulation could claim that its regulation is paternalistic. 258
2. The Substantive Component Rejects Simple Common

Sense.
Given the fact-based inquiry of the courts decisions on sufficiency of
legislative proof, a prospective articulation of the third prong evidentiary
production standard is very limited. The best way to characterize the
material evidence standard for the government to carry its Central Hudson
burden 259 is to state what the government cannot do: It cannot use
common sense to justify its restriction. Since this substantive standard
falls within the first burden of the procedural component, further discussion
is in the next section. 260
B. The Governments Initial Burden: Some Quantum of

Evidence Beyond Mere Speculation and Conjecture Sets a
Floor for the Third Central Hudson Prong
This Note does not prescribe the exact manner in which the
government should present evidence. 261 As the Sixth Circuit wisely stated,
257. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) (stating that
even after the plaintiff can show a prima facia case for discrimination, and the employer can
show a legitimate reason for the employees rejection, the final burden falls back on the
plaintiff to show that the reasons the employer gave for termination are pretextual).
258. Cf. William E. Lee, Manipulating Legislative Facts: The Supreme Court and the
First Amendment, 72 TUL. L. REV. 1261, 1319-20 (1998) (finding that the importance of
commercial speech cannot be achieved through the flexibility of the Courts treatment of
legislative facts); see also infra note 277.
564 (1980).
260. See infra Part IV.B.
261. See Garner, supra note 160, at 385 (requiring proof at a full evidentiary trial could
expose the courts to an impressive body of social science research and expert testimony).
In a Canadian case, the trial judge found no connection between advertising and tobacco use
even after a thirteen-month trial with 28 witnesses, 560 exhibits and 10,819 pages of
transcribed evidence. Id. at 386.
[t]his is not a question of the quality of the evidence supporting a speech

regulation. It is the absence of any evidence of the need for regulation that
is fatal . . . . 262
The government must put forth a significant, verifiable, and
reasonable quantum 263 of evidence beyond common sense and mere
speculation or conjecture to satisfy the third prong. 264 Blacks Law
Dictionary defines quantum as [t]he required, desired, or allowed
amount. 265 While Blacks definition is clearly ambiguous, the Supreme
Court has failed to provide much more clarification on what exactly can
constitute sufficient evidence. 266 When the legislature presents a record of
its regulation to the Court, it cannot be bare, 267 irrational[],
puzzling, 268 lacking in any evidentiary support whatsoever, 269
fundamentally flawed, 270 or based on hypothesized justifications. 271 The
proof must show that the government carefully calculated the costs and
benefits associated with the burden on speech imposed by its
prohibition. 272 It must be based on ample documentation. 273 Regulating
commercial speech cannot be merely convenient, but rather a lastnot
firstresort to achieve the governments interests. 274
Most importantly, the government cannot use simple common
sense. 275 Common sense furthers none of these principles. 276 It is not clear
262. Pagan v. Fruchey, 492 F.3d 766, 773 (6th Cir. 2007).
263. See Grant v. Meyer, 828 F.2d 1446, 1463 (10th Cir. 1987); Pagan, 492 F.3d at 771.
264. Edenfield v. Fane, 507 U.S. 761, 770-71 (1993).
265. BLACKS LAW DICTIONARY 1276 (8th ed. 2004).
267. See Ibanez v. Florida Dept of Bus. and Profl Regulation, Bd. of Accountancy, 512
U.S. 136, 148 (1994).
268. See Rubin v. Coors Brewing Co., 514 U.S. 476, 489 (1995).
269. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 505 (1996).
270. See Greater New Orleans Broad. Assn, Inc. v. United States, 527 U.S. 173, 190
(1999).
271. See Thompson v. W. States Med. Ctr., 535 U.S. 357, 373 (2002).
272. Greater New Orleans, 527 U.S. at 188 (quoting Cincinnati v. Discovery Network,
Inc., 507 U.S. 410, 417 (1993)).
273. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 561 (2001).
274. See Thompson, 535 U.S. at 373.
275. Cf. Florida Bar v. Went for It, Inc., 515 U.S. 618, 628 (1995) (quoting Burson v.
Freeman, 504 U.S. 191, 211 (1992)) (Kennedy, J., concurring). Compare the evidence in
other legal contexts that is adequate to satisfy a partys burden. See, e.g., Perry M. Adair,
Can You Hear Me Now?: Substantial Evidence Under the Telecommunications Act of
1996A Closer Look at Linet v. Wellington, 36 STETSON L. REV. 437, 440 (2007) (internal
citation and quotation omitted) (defining substantial evidence as more than a mere scintilla
but less than a preponderance).
enough to illustrate the reasoning behind legislative justifications or that

the decision is constitutional. 277 Reasonable minds differ about what
common sense can be. 278 At first glance, the perception that large
billboards placed along roadways could create aesthetic and traffic safety
concerns seems to be common sense; 279 however, the First Amendment
also values the right of the speaker to disseminate the information, and the
listener to receive the information. 280 Thus the legislature has a duty to
present some kind of proof to the courts upon a challenge to the restriction.
Beyond common sense does not require a surfeit of empirical data, 281 but
perhaps it could be fulfilled with a record of a town meeting, a transcript
from a hearing, reports of past incidences of harm, et cetera.
The underlying policy for this rejection of common sense is that
Metromedias precedent, which initially established both the common
sense justification for governmental harm and the authority to use it, 282 is
completely faulty. 283 Metromedia should be abandoned as valuable
precedent for common sense. 284
The plurality confused intermediate scrutiny with rational basis
scrutiny. 285 It relied on the language of the California Supreme Court that
the purposes of the ordinance were within the citys legitimate

277. Cf. Lee, supra note 258, at 1320.
[A]sking whether a legislative judgment is constitutional is distinct from
questioning whether the factual premises of a law are empirically valid.
The value preferences animating the judgments for both rational basis
scrutiny and strict scrutiny cases are clear. Intermediate scrutiny floats
free of any principled commitment to free speech; its dominant principal
is the need for flexibility.
Id. (emphasis added).
278. See Rosalie Berger Levinson, State and Federal Constitutional Law Developments,
35 IND. L. REV. 1263, 1269 (2002).
279. See, e.g., Lavey v. City of Two Rivers, 171 F.3d 1110, 1114-15 (7th Cir. 1999)
(citing Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 509-10 (1981)).
280. See Alex Kozinski & Stuart Banner, Whos Afraid of Commercial Speech?, 76 VA.
L. REV. 627, 652 (1990) ([I]n a free market economy, the ability to give and receive
information about commercial matters may be as important, sometimes more important,
than expression of a political, artistic, or religious nature.).
281. See Florida Bar v. Went for It, Inc., 515 U.S. 618, 628 (1995).
282. See supra Part II.B.1.
283. Cf. Metromedia v. City of San Diego, 453 U.S. 490, 569-70 (1981) (Rehnquist, J.,
dissenting) (arguing that the Metromedia opinion is judicial clangor and a virtual Tower
of Babel, from which no definitive principles can be clearly drawn).
285. See infra text accompanying notes 286-289.
interests. 286 Terminology of legitimacy implicates rationality review

that denigrates the commercial speech doctrine that the Court had
positioned at intermediate scrutiny hardly thirteen months prior to the
Metromedia holding. 287 Because the Court utilized the California holding
as a foundation and thus allowed accumulated, common-sense judgments
of local lawmakers, the entire basis for the common sense standard is
flawed from its inception. 288 The Court dug itself into a deeper hole when it
cited Railway Expressa quintessential rational basis case. 289
The plurality erects a false front by purporting to uphold democratic
institutions under the First Amendment:
Mere legislative preferences or beliefs respecting matters of
public convenience may well support regulation directed at other
personal activities, but be insufficient to justify such as
diminishes the exercise of rights so vital to the maintenance of
democratic institutions. And so, as cases arise, the delicate and
difficult task falls upon the courts to weigh the circumstances
and to appraise the substantiality of the reasons advanced in the
support of the regulation of the free enjoyment of the rights. 290
Yet it promptly disregards this articulated policy when it allows
common sense to uphold a commercial speech restriction, and actually
creates a de facto rational basis for review. 291 Such a task of weighing the
circumstances is difficult to conduct when the government has produced
absolutely no proof of its reasoning for enacting the prohibition. 292
286. See Metromedia, 453 U.S. at 497.

287. But cf. id. at 502 (arguing the government has legitimate interests in controlling the
noncommunicative aspects of the medium). The Supreme Court decided Central Hudson
on June 20, 1980, thirteen months before it handed down Metromedia on July 2, 1981. Id. at
490; Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn, 447 U.S. 557 (1980).
288. Metromedia, 453 U.S. at 509.
289. But cf. id. at 509 (citing Ry. Express Agency v. New York, 336 U.S. 106, 109
(1949)) (refusing to trespass on the most intensely local and specialized of all municipal
[traffic] problems).
290. Metromedia, 453 U.S. at 519-20 (quoting Schneider v. State, 308 U.S. 147, 161
(1939)).
291. See supra Part I; see also supra note 277.
292. See Lee, supra note 258, at 1261.
In some cases, such as those involving unprotected categories of speech,
the Court allows legislatures to operate on the basis of unproven
assumptions. . . . Within the contours of intermediate scrutiny, a host of
highly contextual factors, such as the perceived importance of the
speech at issue, the burden on communicative opportunities, and the
medium of communication, determine whether or not the Court defers
to the legislatures judgment.
Finally, the plurality found that, given the subjective nature of

aesthetic judgments, the Court must use careful scrutiny to ensure that the
legislature is not acting under an impermissible purpose. 293 Since no claim
had been asserted that San Diego possessed an ulterior motive to suppress
speech, the plurality said, the Court had no duty to conduct such
scrutiny. 294 The concurrence quickly poked holes in this argument. 295 The
justices stated that the Courts failure to locate anything on the record to
suggest that [legislative] judgments are unreasonable was not a sufficient
finding under the heightened scrutiny appropriate for this case. 296
The material evidence test, by requiring more than common sense,
restores the level of Central Hudson third prong scrutiny to the level at
which it belongs: intermediate scrutiny, not rational basis. 297 As the third
prong is undoubtedly nuanced with its balancing of commercial speech
against the state interest, the Court should not blindly defer to legislative
judgments. 298 Rather, the Court should allow room for legislative
judgments but keep in mind that the legislature must provide some
quantum of evidence to substantiate its restriction. 299
C. The Plaintiffs Burden: Triggering Higher Standard of

Evidence in Face of a Perceived Paternalistic Restriction
Upon the governments production of sufficient proof to carry its
burden under the material evidence test, the burden now shifts to the
plaintiff to assert evidence that the regulation is paternalistic. 300 In
determining whether the plaintiff has met the burden, the court should
like McDonnell Douglasconsider [o]ther evidence that may be relevant
to any showing of pretext that the plaintiff has put forth. 301 The pretext in
Id.
293. Metromedia, 453 U.S. at 510.
294. Id.
295. See id. at 529 (Brennan, J., concurring).
296. Id. at n.7. [T]he [city] has presented no evidence, and it is not immediately apparent
as a matter of experience, that [billboards] pose[] problems . . . more significant than those
associated with various permitted uses; nor does it appear that the [city] has arrived at a
defensible conclusion that unusual problems are presented by [billboards]. Id. at 530
(quoting Schad v. Borough of Mount Ephraim, 452 U.S. 61, 73 (1981) (second, fourth, and
fifth alterations in original).
298. See Lee, supra note 258, at 1282.
299. See id. (quoting United States v. Edge Broad. Co., 509 U.S. 418, 434 (1993)). See
supra Part IV.A.
300. Cf. supra note 248 and accompanying text.
301. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). The basic principles
of relevancy in the evidentiary context should be applied. See, e.g., FED. R. EVID. 401, 402.
the commercial speech situation is the governments discriminatory

treatment of speech under the guise of a facially neutral restriction that is
actually a content-based regulation of truthful commercial speech to
deprive the public of information. 302
The automatic ability of the plaintiff to claim the prohibition is
paternalistic incorporates the policy of content distinction that is missing
from the Central Hudson analysis. 303 For speech that receives full First
Amendment protection, a restriction based on the speechs content receives
much closer scrutiny than a regulation that has not targeted the content (a
content-neutral regulation). 304 A plaintiff that carries its burden at this stage
in the material evidence test not only puts forth more evidence before the
court, 305 but it prompts the court to conduct a closer analysis of the
restriction in light of its hostility toward paternalism. 306
Professor Wilson Huhn has written extensively on the concept of
causation and its relation to the First Amendment. 307 He asserts that the
more a regulation prevents the ability to express ideas, the more proof of
harm the government should be compelled to produce to justify its
restriction. 308 Although he does not explicitly suggest a modification for
the evidentiary standards in commercial speech, Huhn advances an
underlying policy that coincides with this Notes suggestion of creating a
more palpable third-prong Central Hudson test. 309
In my opinion, the factor that limits the use of policy analysis in
judicial reasoning is not the type of value that is at stake, but
rather whether it is possible to prove that a particular value is in
fact a purpose of the law. In interpreting the law, the courts are
called upon to identify the values and interests that laws are
intended to serve. Whether the law is constitutional text, a
statutory enactment, or an administrative regulation, the purpose
302. See C. Edwin Baker, Paternalism, Politics, and Citizen Freedom: The Commercial
Speech Quandary in Nike, 54 CASE W. RES. L. REV. 1161, 1163-64 (2004).
305. This provides the court with additional evidence on which it can base its holding,
further mitigating the problems of the evidentiary issues by providing some quantum of
evidence and clearing the hurdle of the prohibited common sense allowance.
306. See Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L. REV.
1, 50 (2000).
307. See, e.g., Wilson Huhn, Scienter, Causation, and Harm in Freedom of Expression
Analysis: The Right Hand Side of the Constitutional Calculus, 13 WM. & MARY BILL RTS. J.
125 (2004). The right hand side of the constitutional calculus is the proof of harm that the
government must prove to justify a law restricting expression or speech. Id. at 127.
308. Id. at 125-26.
309. See supra Part IV.B.
of the law may be to promote individual rights, collective goals,

or a combination of both. It is both legitimate and appropriate for
a court to interpret the law in a manner that is consistent with its
purposes, individual and/or collective. 310
Interpreting the law to determine its consistency with its purpose
accordingly requires a deeper look at the actual purpose of the law to
ensure that the citizens need for knowledge has been fully considered by
the government before it created the law. 311
Critics opposition to increasing the amount of inquiry for
commercial speech derives from a fear of a leveling process that will
devaluate the quality and purpose of the First Amendment. 312 To require a
parity of constitutional protection for commercial and noncommercial
speech alike could invite dilution, simply by a leveling process, of the force
of the Amendments guarantee with respect to the latter kind of speech. 313
The Court will not protect commercial speech at the expense of other forms
of speech deserving greater constitutional moment. 314
Allowing the plaintiff to call into question a law that it perceives to be
paternalistic will not disrupt the key distinctions between commercial and
noncommercial speech. 315 Judge Kozinski finds this differentiation to be
exaggerated:
Good heavens, we hear, if the first amendment fully protects
commercial speech, government will be helpless in the fight
against fraud. . . . If we treat speech as speech, commercial or
not, we fall back on standard content-neutral analysis:
Government regulation is constitutional where it furthers an
310. Id. at 163 (footnotes omitted).

311. Cf. Wetch, supra note 128, at 186 ([T]he First Amendment gives government little
latitude to restrain commercial speech, except for speech that hurts, rather than helps,
consumers ability to make informed choices. This need for knowledge underscores the
probable continued use of the Central Hudson test.) (internal quotation omitted).
312. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 506 (1981).
313. Id. (quoting Ohralik v. Ohio St. Bar Assn, 436 U.S. 447, 456 (1978)).
314. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of New York, 447 U.S. 557,
563 n.5 (1980). Contra City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 431
(1993) (Blackmun, J., concurring) ([T]here is no reason to treat truthful commercial speech
as a class that is less valuable than noncommercial speech.).
315. For a definition of commercial speech, see supra note 6. For an explanation of the
different scrutiny levels afforded to commercial and non-commercial speech, see supra note
36.
important governmental interest, the governmental interest is

unrelated to the suppression of free expression, and the
restriction on expression is no greater than necessary. 316
While this Note sees no need to disrupt the Central Hudson test so
significantly to remove the test altogether and use strict scrutiny,
implementing this shifted burden of the material evidence test promotes
fundamental free speech principles. [U]nder the First Amendment the
public, not the State, has the right and the power to decide what ideas and
information are deserving of their adherence. 317 [T]he general rule is that
the speaker and the audience, not the government, assess the value of the
information presented. 318
D. The Governments Rebuttal Burden: Ensuring That the

Legislature Acts Constitutionally When Creating
Restrictions on Commercial Speech
The final procedural stage of the material evidence test places the
burden back on the government to show that its regulation is either not
paternalistic, as the plaintiff claims, or is justifiably paternalistic. 319 Again,
the government cannot use common sense, but rather must show that a
reasonable legislator could believe that the regulation was not targeted at
depriving the public of valuable information without adequate justification
on the record. 320
This standard invokes yet another protection for commercial speech
by putting legislatures on notice that they must prove they have not
controlled undesirable conduct by restricting commercial speech. 321 In
other words, the burden institutionalizes the policy that drove the first
Supreme Court case that established protection for commercial speech,
Virginia State Board of Pharmacy. 322 [A] fear of the persuasive influence
of nondeceptive speech concerning lawful products and services is a
presumptively invalid rationale for commercial speech regulations. 323
316. Kozinski & Banner, supra note 280, at 651.

317. Florida Bar v. Went for It, Inc., 515 U.S. 618, 645 (1995) (Stevens, Kennedy,
Souter, Ginsburg, JJ., dissenting).
318. Id. (quoting Edenfield v. Fane, 507 U.S. 761, 767 (1993)).
319. See supra Part IV.A.1.
320. See April Bailey Cole, Note, Indecency on the Internet: Reno and the
Communications Decency Act of 1996, 27 CAP. U. L. REV. 607, 614 (1999).
322. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 770
(1976).
323. Lee, supra note 298, at 1288.
V. Applying the Material Evidence Test

Pagan v. Fruchey, the most recent circuit court holding that
extensively interpreted the third prong of Central Hudson, is an illustration
of how the substantive element of the material evidence test should
operate. 324 Pagan is important not only because of the depth of treatment of
the common sense standard in commercial speech, 325 but also because
the Supreme Court refused to clarify the standards when it denied the
defendants petition for certiorari on December 3, 2007. 326
Anheuser-Busch, Inc. v. Schmoke, a Fourth Circuit decision,
complements Pagans substantive analysis by depicting the procedural
elements of the burden-shifting process within the material evidence
test. 327
A. Pagan v. Fruchey Exemplifies the Problem with Common

Sense.
Plaintiff Christopher Pagan had a straightforward objective: to sell his
1970 Mercury Cougar. 328 After advertising the automobile in the classified
section of his local newspaper to no avail, Pagan put up a For Sale sign
in the window of his car, which he had parked on a public road in the
Village of Glendale. 329 Unfortunately for Pagan, the local Traffic Code
prohibited this activity, and police officers observing the sign instructed
him to remove it. 330 Pagan promptly followed their request and equally as
promptly filed suit, claiming that the Traffic Ordinance violated the First
Amendment as an unconstitutional restriction on commercial speech. 331
The Sixth Circuits analysis of Pagans commercial speech rights
focused on the third prong of the Central Hudson test. 332 The primary issue
was whether Glendale submitted adequate evidence to survive the third
324. See Pagan v. Fruchey, 492 F.3d 766, 771 (6th Cir. 2007).
325. See id. at 774-78.
326. See Village of Glendale v. Pagan, 128 S. Ct. 7111 (2007). This Court should
clearly state that Metromedias application of Central Hudsons third prong to signs is still
good law: common-sense judgments of local lawmakers can establish that an ordinance
directly advances substantial governmental interests in traffic safety and aesthetics unless
they are unreasonable. Petition for Writ of Certiorari, Village of Glendale, 128 S. Ct. 7111
(2007) (No. 07-420), available at 2007 WL 2813938.
327. See Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1313-16 (4th Cir. 1995),
vacated, 517 U.S. 1206 (1996).
328. Pagan v. Fruchey, 492 F.3d 766, 769 (6th Cir. 2007).
329. Id.
330. Id.
331. Id. at 769-70.
332. See id. at 771.
prong, and the court held that Glendale did not show enough proof of harm
to uphold its ordinance under constitutional scrutiny. 333 The only evidence
the city asserted was an affidavit from Police Chief Matt Fruchey that
stated the objective of the ordinance was to prohibit attractions or
activities which will induce people to come into the roadway who are not a
part of normal vehicular or pedestrian traffic, such as . . . individuals who
are looking over a motor vehicle which is displaying a for sale sign parked
on the street. 334
The court looked to Edenfield for the governments standard to show
causation. 335 Edenfield requires something more than mere speculation or
conjecture to satisfy the governments burden; accordingly, Glendale had
to demonstrate that its restriction would materially alleviate real harm. 336
The court interpreted this to mean that the government must show some
quantum of evidence, beyond its own belief in the necessity of regulation,
that the harms it seeks to remedy are concrete and that its regulatory regime
advances the stated goals. 337
According to the court, the sole piece of evidence presented by
Glendale to show its interestthe affidavitfailed to meet this
requirement. 338 Applying Central Hudson, the court found that bald
assertions and an absence of evidence of real harm prevented the state from
showing that its speech restriction had any connection to further its asserted
interests. 339 The court held that the reasons for requiring more than a
minimal showing derived from the intermediate scrutiny afforded to
commercial speech. 340 This level of scrutiny, the court said, forces the
government to put forth sufficient evidence to develop a basis for
concluding that Glendales legislative decision is animated by reasoned
judgment and not hostility toward particular speech. 341 Finally, the court
justified its heightened third-prong standard with a policy argument that the
333. See id. at 771-72.

334. Pagan, 492 F.3d at 772-73.
335. See id. at 771.
336. Id. (quoting Edenfield v. Fane, 507 U.S. 761, 770-71 (1993)).
337. Id.
338. See id. at 778 (It is Glendales obligation to provide something in support of its
regulation, and we do not find ourselves free to hold that obligation has been discharged
based on principals of common sense or obviousness . . . .).
339. Id. at 772.
340. Pagan, 492 F.3d at 777.
341. Id.
First Amendments requirement of evidentiary justification is not, in and

of itself, a cause for dismay and that such burden could be fairly easily
met. 342
The material evidence test requires the governmenthere,
Glendaleto produce some quantum of evidence that its regulation
directly and materially advances its interest. 343 As outlined above, the Sixth
Circuit provided extensive analysis of the reasons why it would find that
Glendale would fail the substantive requirement of this burden. 344 This
would thus end the material evidence inquiry, requiring the court to
strike down the regulation as unconstitutional under Central Hudsons third
prong. 345
B. Anheuser-Busch Fails to Conform With Supreme Court

Standards.
Professor Bhagwat, in his article criticizing the intermediate scrutiny
test, argued that the Fourth Circuits decision in Anheuser-Busch was
blatantly inconsistent with the Supreme Courts views in Lorillard
Tobacco. 346 Applying the material evidence test would provide the
additional specificity [that] might have made a difference [in] Anheuser-
Busch v. Schmoke . . . [to promote] clearer guidance from the Court [to
avoid] the divergence. 347
[T]o promote the welfare and temperance of minors exposed to
advertisements for alcoholic beverages, Baltimore, Maryland, prohibited
outdoor alcoholic drink advertisements in locations visible to the public. 348
342. See id. at 778.

343. See id. at 771.
344. See supra Part V.A.
345. Assume, for the sake of argument, that Glendale met its initial burden. Now the
burden shifts to the plaintiff Pagan, who must show that the regulation is paternalistic. He
must show that the governments purpose of prohibiting For Sale signs is to insulate the
public from lawful information. For a review of Supreme Court jurisprudence on
paternalism, see supra text accompanying notes 164-169. For example, Pagan might assert
circumstantial proof that Glendale is attempting to control buyer and seller behavior by
curtailing the ability of buyers to purchase a used vehicle directly from the owner.
346. Bhagwat, supra note 27, at 830. Bhagwat proposed amendments to the intermediate
scrutiny test by dismantling the tests into their constituent parts to provide more palpable
standards on how courts should perform the intermediate scrutiny balancing. Id. at 825. The
material evidence standard in this Note performs the exact disaggregation that Bhagwat
proposes.
347. See id. at 830.
348. Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1308 (4th Cir. 1995) (internal
quotes omitted), vacated, 517 U.S. 1206 (1996). The ordinance contained a few exceptions
for allowing the display of alcoholic ads on vehicles and in sports stadiums. Id.
Baltimore conducted public hearings before enacting the ordinance and

received testimony and evidence of studies about the correlation between
advertising alcohol and underage consumption. 349 Anheuser-Busch, one of
Americas largest brewers of beers and malt beverages like Budweiser and
Michelob, challenged the prohibition. 350 It claimed (1) that no correlation
existed between advertising and underage drinking, (2) that the purpose of
the outdoor ads was to increase the market share by targeting adult beer
drinkers of another brand, and (3) that seven of its dozens of billboards in
Baltimore contained public service messages like, Lets stop underage
drinking before it starts. 351
The Fourth Circuit, however, upheld the restriction. 352 It first found
that Baltimore carried its burden under the third Central Hudson prong by
pointing to the record of legislative facts that directly and materially
advanced the governments interest. 353 The court also noted that such
legislative facts cannot be trumped by the fact finding apparatus of a
single court. 354 The government need not conclusively prove that the steps
undertaken will solve the problem, the court said, as long as the legislature
was reasonable in the belief that the means selected would advance its
ends. 355
The hearings and studies used by the Baltimore legislature to enact
the ordinance fulfill the initial governmental burden under the material
evidence test. 356 Regardless of whatever infirmities Anheuser-Busch
highlighted in the quantity or quality of the evidence presented, the
evidence on record is not merely common sense. 357 It illustrates
somethingsome quantum, some reasonable justificationthat guided the
legislature when it created the ordinance. 358 This quantum is now squarely
349. Id. at 1309.

350. Id. at 1309-10.
351. See id. The public service nature of some of the advertisements blurs the line
between commercial and noncommercial speech. See supra notes 316-318 and
accompanying text. For more information on the commercial/noncommercial distinction,
see Nat Stern, In Defense of the Imprecise Definition of Commercial Speech, 58 MD. L. REV.
55 (1999).
352. Anheuser-Busch, 63 F.3d at 1318.
353. Id. at 1312, 1314-15.
354. Id. at 1312.
355. Id. at 1314-15.
357. See supra text accompanying notes 216-225; see also supra Part IV.B.
before the court; it provides the court with a modicum of substantiation of

the governments reasoning and preserves the required level of Central
Hudson analysis at the intermediate scrutiny level. 359
Since Baltimore has carried its initial burden, the burden now shifts to
Anheuser-Busch to establish evidence that the ban on outdoor alcoholic
beverage advertising is paternalistic. 360 This will not be hard to meet, as
Baltimore itself noted that the ordinance suppresses speech for the purpose
of controlling conduct. 361 The working definition of paternalism fits this
ordinance like a glove: a restriction on otherwise protected speech
justified by the governments belief that speaking or receiving the
information in the speech is not in citizens own best interests. 362
Thus the final burden now falls back on Baltimore to either rebut
Anheuser-Buschs conclusion that the ordinance is paternalistic, or justify
that its ordinance is necessary to cure the articulated harms. 363 How
Baltimore accomplishes this is a matter for the courts to decide, yet Justice
Thomass perpetual difference of opinion in recent commercial speech
cases have particular influence in this situation. 364 Thomas writes, I
continue to believe that when the government seeks to restrict truthful
speech in order to suppress the ideas it conveys, strict scrutiny is
appropriate, whether or not the speech in question may be characterized as
commercial. 365
CONCLUSION
A legislature that carefully calculates the costs of its restriction on
commercial speech 366 and supports those calculations with non-
hypothesized, concrete, and reasonable justifications 367 can prevent courts
from confronting the separation of powers tension that forms the
undercurrent of commercial speech. This quintessential horizontal
separation debate emerges when either the legislature is granted an
unrestricted and free hand to develop laws or the judiciary excessively
359. The some quantum standard may still be vague and permit manipulation, but
removing common sense takes at least a small step closer to more concrete guidelines for
the third prong.
360. See supra Part IV.C.
361. See Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1308 (4th Cir. 1995).
362. See Carpenter, supra note 51, at 650.
363. See supra Part IV.D.
364. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 572 (2001) (Thomas, J.,
concurring).
365. Id.
scrutinizes the laws created by elected representatives. 368

Fortunately, the First Amendment partially resolves these competing
interests by protecting speech. 369 Although commercial speechs quasi-
insulation derives from judicially created restraints, a thoughtful analysis of
the required tiers of scrutiny and the dangers of content-based regulation
through the lens of the third Central Hudson prong will solidify
commercial speechs status in First Amendment jurisprudence. 370
This Note has constructed a mechanism for such an analysis by
creating the material evidence test. Courts that incorporate this burden-
shifting, common sense rejecting approach into their application of the
direct advancement prong will achieve two concrete results. First, they
will prevent dilution of Central Hudson intermediate scrutiny to an
unlawful, de facto rational basis level by providing the Court with an ample
amount of evidence for it to make an informed decision. Second, courts
will protect commercial speech from paternalistic laws by triggering an
additional burden on the government to show further evidence that its
regulation is not paternalistic. 371
The recognition of the shortcomings of the third prong and
subsequent remedy of its inadequacies will further free speech principles
by preventing commercial speech from becoming chilled. 372 And it
ultimately places the power into the hands of the citizens to decide for
themselves the value of commercial speech. 373
368. [A]n overly rigid commercial speech doctrine will transform what ought to be a
legislative or regulatory decision about the best way to protect the health and safety of the
American public into a constitutional decision prohibiting the legislature from enacting
necessary protections. Thompson v. W. States Med. Ctr., 535 U.S. 357, 389 (2002) (5-4
decision) (Breyer, J., dissenting).
369. See Thompson, 535 U.S. at 373.
370. See supra Part I.
371. See supra Part V.
372. See, e.g., Intl Dairy Foods Assn v. Amestoy, 92 F.3d 67, 71 (2d Cir. 1996) (noting
that burdensome requirements on FDA disclosure could chill commercial speech).

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HINEGARDNER FINAL 1/4/2010 10:52:06 AM

ABROGATING THE SUPREME

522 NEW ENGLAND LAW REVIEW [Vol. 43:521

harmful products. The Court has labeled this process as paternalism

2009] CENTRAL HUDSONS THIRD PRONG 523

6. Thompson Required Commercial Speech

524 NEW ENGLAND LAW REVIEW [Vol. 43:521

I share [the] discomfort with the Central Hudson test [for

2009] CENTRAL HUDSONS THIRD PRONG 525

the unique tension of commercial speechs place between judicial

526 NEW ENGLAND LAW REVIEW [Vol. 43:521

another legal discipline that remedied evidentiary issues in employment

I. The Third Prongs Shortcomings

2009] CENTRAL HUDSONS THIRD PRONG 527

necessary means, and rational basis scrutiny, which requires legitimate

528 NEW ENGLAND LAW REVIEW [Vol. 43:521

judiciary to review legislative decisions. 25

2009] CENTRAL HUDSONS THIRD PRONG 529

530 NEW ENGLAND LAW REVIEW [Vol. 43:521

paternalistic. 40 The Court should create a more stringent safeguard to

II. Central Hudson and Its Progeny

A. Central Hudsons Establishment of the Commercial Speech

40. See infra Parts II.D, III.B.

2009] CENTRAL HUDSONS THIRD PRONG 531

532 NEW ENGLAND LAW REVIEW [Vol. 43:521

B. The Emergence of Common Sense Legislative Judgment

1. Metromedia v. City of San Diego Defers To Common-

57. Cent. Hudson, 447 U.S. at 569.

2009] CENTRAL HUDSONS THIRD PRONG 533

identify the name of the occupant or goods available on the premises, it

64. Metromedia, 453 U.S. at 493 & n.1.

534 NEW ENGLAND LAW REVIEW [Vol. 43:521

expressly rejected the pluralitys deference to common sense judgments of

2. Edenfield v. Fane Requires Evidence Beyond Mere

73. Id. (emphasis omitted).

2009] CENTRAL HUDSONS THIRD PRONG 535

3. Florida Bar v. Went for It, Inc. Furthers the Common

83. See Edenfield, 507 U.S. at 767-68.

536 NEW ENGLAND LAW REVIEW [Vol. 43:521

C. Recent Supreme Court Interpretations of the Third Central

1. Ibanez Emphasized That the States Burden is Not

2009] CENTRAL HUDSONS THIRD PRONG 537

the Court had never sustained a regulation on constitutionally protected

2. Coors Brewing Found the Third Prong Standard to Be

538 NEW ENGLAND LAW REVIEW [Vol. 43:521

submitted anecdotal evidence and educated guesses that merely

3. 44 Liquormart Added the Requirement of Significant

109. Id. at 490.

2009] CENTRAL HUDSONS THIRD PRONG 539

44 Liquormart went one step further in explaining the lack of record

4. Greater New Orleans Upheld the Right of the Audience

119. See id. at 507.

540 NEW ENGLAND LAW REVIEW [Vol. 43:521

5. Lorillard Tobacco Affirmed Food and Drug

2009] CENTRAL HUDSONS THIRD PRONG 541

detailed reasoning about the various shortcomings. 136 Justice Thomas

6. Thompson Required Commercial Speech Restriction to

542 NEW ENGLAND LAW REVIEW [Vol. 43:521

7. A Conclusion of the Current Status of the Third Central

145. Id. at 370.

2009] CENTRAL HUDSONS THIRD PRONG 543

solicitation (e.g., Ibanez) seem to belong to their own sphere of commercial

544 NEW ENGLAND LAW REVIEW [Vol. 43:521