All Native Advertising Is Not Equal: Why That Matters Under The First Amendment And Why It Should Matter To The FTC – Part III

In this five part series, originally published in the Summer 2014 edition of the Media Law Resource Center Bulletin,1 we take an in-depth look at the native advertising phenomenon and the legal issues surrounding the practice. After canvassing the many faces of native advertising and the applicable law, the series ultimately examines the pervasive assumption that all native advertising is, and should be regulated as, "commercial speech." This assumption presumes that all native advertising is equal under the eyes of the law, and we come to the conclusion that it probably isn't. Native advertising that is closer to pure content than pure commercial speech may deserve greater or even full First Amendment protection, which would carry significant implications for government regulation2.

Part 1: Introduction to Native Advertising

Part 2: Early Native Advertising and the Current FTC Regulatory Landscape

Part 3 below provides a quick overview of the commercial speech doctrine the protections traditionally afforded to advertisers by the First Amendment.

—PART III—

Commercial Speech and the First Amendment

One question that curiously has only sporadically come up in the native discussion is the level of First Amendment protection that should be afforded to such speech. From a constitutional and regulatory perspective, the critical question is whether native is considered "commercial" speech under Supreme Court precedent. If native is considered commercial speech, then government regulations are subject to intermediate judicial scrutiny. If native is considered noncommercial, then government regulations are subject to the more heightened strict scrutiny standard.3 This section provides a primer on the First Amendment and commercial speech before turning to its application to Native Advertising.

The Evolution of Commercial Speech's First Amendment Protection

One of the fundamental purposes of the First Amendment is to promote the free flow of information in the "marketplace of ideas."4 To that end, the First Amendment prevents the government from restricting speech because of its message, its ideas, its subject matter, or its content.5 The Constitution requires that "content-based restrictions on speech be presumed invalid...and that the Government bear the burden of showing their constitutionality."6 The level of protection given to speech depends on its categorization, with political speech receiving the greatest and commercial speech receiving the lowest.7Accordingly, government regulations of political and other core noncommercial speech are subject to the highest standard of strict scrutiny, while commercial speech regulations are only subject to intermediate scrutiny.8 Finally, some limited categories of speech receive no protection at all, including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.9

For much of its history, commercial speech was also included in the category of non-protected speech. 10 Through the 1900's, speech that "did no more than propose a commercial transaction" received zero First Amendment protection and could be freely regulated.11 The Supreme Court was in fact dismissive of commercial speech, even when combined with other traditionally protected expression.12

The Court's view on commercial speech and the First Amendment began to evolve in the early 1970's. In the first of these cases, Pittsburgh Press Company, the Supreme Court addressed the constitutionality of prohibiting gender-segregated classified ads (e.g. "Help Wanted, Male").13 While the Court ultimately upheld the regulation, it explained for the first time that "speech that does no more than propose a commercial transaction" may be entitled to some First Amendment protection.14 As the Court noted, "speech is not...