Commercial
Speech (OFFSITE LINK)-authoritative memorandum of law
Black's Law Dictionary, Sixth Edition, page 271
Commercial speech doctrine. Speech that was categorized as "commercial" in nature (i.e. speech that advertised a product or service for profit or for business purpose) was formerly not afforded First Amendment freedom of speech protection, and as such could be freely regulated by statutes and ordinances. Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262. This doctrine, however, has been essentially abrogated. Pittsburgh Press Co. v. Pittsburgh Comm. on Human Rights, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669; Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600; Virginia State Brd. of Pharmacy v. Virginia Citizen Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346.
We have defined commercial speech as:“expression related to the economic interests of the speaker and its audience, generally in the form of a commercial advertisement for the sale of goods and services.” U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 933 (3d. Cir.1990).To determine whether speech is commercial, courts should consider whether:
(1) the speech is an advertisement;
(2) the speech refers to a specific product or service; and
(3) the speaker has an economic motivation for the speech.
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66-67 (1983); In re Orthopedic Bone Screw Prods. Liab. Litig., 193 F.3d 781, 793-794 (3d Cir. 1999). An affirmative answer to each question indicates “strong support” for the conclusion that the speech is commercial.