The Congress passed a law prohibiting the “transmission of commercial electronic communications with the use of a computer system which seeks to advertise, sell, or offer products and services without prior consent of the recipient.” The digital marketplace Buy and Ship Online (BSO) questioned the constitutionality of the law for being a class legislation because it specifically targets online businesses. The BSO added that the measure must be tested using the “strict scrutiny test” because it interferes with the exercise of fundamental rights since commercial advertisements are forms of free speech and expression. In contrast, the Office of the Solicitor General invoked the “rational basis test” and argued that the State has a legitimate interest to protect the public from unsolicited advertisements. Considering the levels of judicial scrutiny, what is the proper test to determine the constitutionality of the subject law? Explain.
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The proper test to determine the constitutionality of the subject law is the intermediate scrutiny test. Under Constitutional Law, commercial speech—speech proposing a commercial transaction—is protected but receives lesser protection than political speech. While
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Quick check
What is the proper level of judicial scrutiny to determine the constitutionality of a law regulating unsolicited commercial electronic communications?
Regulations on commercial speech are evaluated under intermediate scrutiny because commercial speech receives lesser protection than core political speech.
How does commercial speech differ from political speech under constitutional law regarding freedom of expression?
Commercial speech proposes a commercial transaction and is protected, but enjoys lesser protection than core political or ideological speech.
What must the State demonstrate to satisfy the intermediate scrutiny test when regulating commercial speech?
Intermediate scrutiny requires the State to prove a substantial government interest that is directly advanced by narrowly tailored regulation.
Why is the strict scrutiny test inapplicable to a statute regulating unsolicited commercial advertisements?
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Why is the rational basis test improper for evaluating restrictions on commercial advertisements?
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1. Commercial Speech Protection
Commercial speech refers to speech that proposes a commercial transaction, such as advertisements and sales promotions. While protected under the constitutional guarantee of freedom of expression, commercial speech receives a lower level of protection than core political, religious, or ideological speech. The State may regulate commercial communications to protect consumers from misleading practices or unsolicited intrusion. However, because commercial speech remains a constitutionally protected form of expression, government regulations targeting commercial advertisements cannot be subjected to mere rational basis review, nor do they automatically trigger the highest level of strict constitutional scrutiny.
2. Levels of Scrutiny
Constitutional law recognizes three distinct levels of judicial scrutiny to evaluate the validity of government acts: strict scrutiny, intermediate scrutiny, and rational basis review. Strict scrutiny applies to laws burdening fundamental constitutional rights or targeting suspect classifications, requiring a compelling state interest and the least restrictive means. Rational basis review applies to general economic and social legislation, requiring only a legitimate state interest rationally related to the law. Intermediate scrutiny serves as a middle-tier standard, requiring the government to demonstrate an important or substantial state interest directly advanced by narrowly tailored means.
3. Intermediate Scrutiny Test
The intermediate scrutiny test is the proper standard for evaluating governmental restrictions placed upon commercial speech, including unsolicited electronic marketing. Under this standard, the State must establish that the challenged law serves a substantial or important governmental objective, such as protecting citizens from cyber-nuisance and intrusive commercial spam. Furthermore, the regulation must directly advance that substantial interest without being broader than necessary. Because the prohibition on unsolicited commercial electronic communications targets commercial transactions rather than political expression, intermediate scrutiny balances individual free speech rights against legitimate regulatory objectives.