¶ … First Amendment of the U.S. Constitution guarantees to us freedom of speech - promises to each citizen and resident of the United States that the government will not tell us what we can or cannot say. Right? Well, mostly. While in general Americans are protected by the First Amendment so that we can say whatever wise or witty or stupid or offensive thing that we like. However, there are important exceptions to this general condition: Not all speech is equally protected. This paper examines one of those arenas in which greater-than-usual restrictions are placed upon what people may say and the way in which they may say it. Billboards, as a very public example of commercial speech, are restricted in ways that a person standing on a street under a billboard talking to her friend is not.

Advertising is indeed protected by the First Amendment of the U.S. Constitution. Advertising or "Commercial speech" enjoys somewhat less First Amendment protection from governmental encroachment than other types of speech. The Federal Trade Commission, for example, may regulate speech that is found to be "deceptive."

It should be noted that it is not only commercial speech that may have greater-than additional restrictions placed upon it. While the ways in which various forms of speech may be restricted are determined by careful, how-many-angels-dancing-on-the-head-of-a-pin arguments, at base these arguments rest upon commonsense understandings that not all forms of speech are the same.

The Bill of Rights, headed by the First Amendment with its clear and careful rendering of the essential freedoms that define life for Americans (coupled with the language of the Tenth Amendment, with its clear warning the rights that Americans have are a birthright and not a gift from the government), are bulwarks of our democracy. If any one thing defines our system of governance, it is those freedoms spelled out in the Bill of Rights. (Joined, of course, to the constitutional separation of powers.)

It cannot be stressed too strongly how important First Amendment protections are. This amendment forbids Congress to make any laws that limit the freedom of the ways in which Americans are able either to express ourselves and to communicate with each other through a free press. Any encroachment upon this fundamental freedom by legislators or the courts must be made with the greatest possible caution. The Framers of the Constitution understood (perhaps even better than we today, given that we have had the luxury of growing up in a society in which free speech and free press rights were upheld) that the free exchange of ideas amongst the members of a society is essential to maintain a democratic form of government.

And yet, there have been since the beginnings of the republic a number of restrictions placed on expression. Indeed, one of the major veins of political discourse in American history is the attempt to balance free expression with certain kinds of protections of the public weal. Among these protections of the public are those restrictions that govern commercial speech.

Other protections are aimed at providing physical protection to people (not shouting "Fire!" In that crowded theater, not making believable threats of violence against a person). And still other protections are designed at preventing moral harm, such as the 1996 Telecommunications Act, which sought to place restrictions on the Internet so as to protect minors from being exposed to pornography. Likewise, anti-obscenity statutes prohibit an entire genre of expression.

Restrictions on commercial speech are in key legal ways similar to those restrictions on inflammatory or obscene speech: All of these forms of speech may be restricted in some ways to ensure that the public is not harmed. However, from a commonsense viewpoint, restrictions on commercial speech seem to us more questionable. Most of us can agree that there are real dangers in starting a panicked stampede in a theater or a football stadium or that it is wrong to allow an armed man to threaten to kill passing strangers. But what real harm does a stupid billboard do?

The Supreme Court at one point held that commercial speech of all sorts (whether on the page of a newspaper, in a radio broadcast or on a billboard) was entirely beyond the protection of the First Amendment and was subject to a host of governmental regulations.

For example, in the 1942 case Valentine, Police Commissioner of the City of New York v. Chrestensen (316 U.S. 52), the Supreme Court reversed a decision that had allowed a merchant to pass out handbills about his business on the street - even if he included along with the commercial content of the printed matter non-commercial content that appealed to the public interest.

In this decision, it also upheld the then-well established idea that commercial speech could be regulated by the government without infringing on First Amendment rights because commerce is, in general, an arena of life in which the government has a great deal of authority to regulate behavior.
The court argued:

This court has unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in these public thoroughfares. We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.

However, in 1993, the court ruled (in Edenfield v. Fane, 123 L. Ed. 2d 543, 113 S. Ct. 1792, 1798) in essentially the opposite direction, this time arguing that the fact that commercial speech is more important than the fact that it is commercial:

The commercial market place, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment.

The most important single decision regarding commercial speech and the ways in which billboards, like other forms of advertising, can be restricted, came in the 1980 U.S. Supreme Court decision Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (447 U.S. 557). This case (in which the court found that a state must justify any restrictions on truthful, non-misleading commercial speech. This decision created the four-point Hudson test.

First]... [the commercial speech] at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

By this standard, it would seem that nearly every billboard should pass muster. However, billboards are often restricted in ways that other forms of commercial speech are not. These greater restrictions result from the fact (in nearly every case) that many cities and counties restrict billboards through zoning ordinances. Billboard companies argue that such restrictions violate their First Amendment Rights as reified in the Hudson decision. Local zoning and planning commissions argue that it is not the speech content of the billboards that they are restricting but the billboards themselves as physical objects. These billboards, planning and zoning authorities argue, can be regulated in the same way that cities limit the heights of buildings or fences.

Advertising can drape itself in constitutional armor but needn't embody constitutional values. This is particularly insidious in the billboard wars taking place in U.S. cities. Outdoor advertisers are successfully using the First Amendment to defend themselves against billboard bans and zoning restrictions.

Both sides of this argument have merit. The key legal (and political and cultural) point is the distinction of which aspect of billboards has priority: The fact that they are large and often ugly and distracting or the fact that they are "speech acts" to borrow a phrase from the linguists. As one might suspect, this depends upon whom one asks.

Four states - Alaska, Hawaii, Maine and Vermont - ban all billboards in an attempt to preserve the natural beauty of their land, and many other local governments also ban billboards, and many citizens seem quite happy with these restrictions. Moreover, tobacco products cannot be advertised on billboards across the country - the commercial speech rights of tobacco companies considered to be less important than the protection of children who might take up smoking.

In general the courts have sided with the power of local or state governments to limit billboards - arguing in effect that the governments do have the authority to regulate physical objects even if such regulations have the ancillary effect of regulated various forms of speech.

In reversing the state supreme court's decision…