Central Hudson Gas & Elec. v. Public Svc. Comm’n, 447 U.S. 557 (1980)

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Author: Justice Brennan

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Central Hudson Gas & Elec. v. Public Svc. Comm’n, 447 U.S. 557 (1980)

MR. JUSTICE BRENNAN, concurring in the judgment.

One of the major difficulties in this case is the proper characterization of the Commission’s Policy Statement. I find it impossible to determine on the present record whether the Commission’s ban on all "promotional" advertising, in contrast to "institutional and informational" advertising, see ante at 559, is intended to encompass more than "commercial speech." I am inclined to think that MR. JUSTICE STEVENS is correct that the Commission’s order prohibits more than mere proposals to engage in certain kinds of commercial transactions, and therefore I agree with his conclusion that the ban surely violates the First and Fourteenth Amendments. But even on the assumption that the Court is correct that the Commission’s order reaches only commercial speech, I agree with MR. JUSTICE BLACKMUN that

[n]o differences between commercial speech and other protected speech justify suppression of commercial speech in order to influence public conduct through manipulation of the availability of information.

Post at 578.

Accordingly, with the qualifications implicit in the preceding paragraph, I join the opinions of MR. JUSTICE BLACKMUN and MR. JUSTICE STEVENS concurring in the judgment.

1. See Friedman v. Rogers, 440 U.S. 1, 10 (1979) (Court upheld a ban on practice of optometry under a trade name as a permissible requirement that commercial information "`appear in such a form . . . as [is] necessary to prevent its being deceptive,’" quoting from Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 772, n. 24 (1976)); Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978).

2. See Bates v. State Bar of Arizona, 433 U.S. 350 (1977); Carey v. Population Services International, 431 U.S. 678, 700-702 (1977); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85 (1977); Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976); Bigelow v. Virginia, 421 U.S. 809 (1975).

3. In my view, the Court today misconstrues the holdings of both Virginia Pharmacy Board and Linmark Associates by implying that those decisions were based on the fact that the restraints were not closely enough related to the governmental interests asserted. See ante at 564-565, and n. 7. Although the Court noted the lack of substantial relationship between the restraint and the governmental interest in each of those cases, the holding of each clearly rested on a much broader principle.

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Chicago: Brennan, "Brennan, J., Concurring," Central Hudson Gas & Elec. v. Public Svc. Comm’n, 447 U.S. 557 (1980) in 447 U.S. 557 447 U.S. 573. Original Sources, accessed February 4, 2023, http://www.originalsources.com/Document.aspx?DocID=8P8GJB7NW1CVWWY.

MLA: Brennan. "Brennan, J., Concurring." Central Hudson Gas & Elec. v. Public Svc. Comm’n, 447 U.S. 557 (1980), in 447 U.S. 557, page 447 U.S. 573. Original Sources. 4 Feb. 2023. http://www.originalsources.com/Document.aspx?DocID=8P8GJB7NW1CVWWY.

Harvard: Brennan, 'Brennan, J., Concurring' in Central Hudson Gas & Elec. v. Public Svc. Comm’n, 447 U.S. 557 (1980). cited in 1980, 447 U.S. 557, pp.447 U.S. 573. Original Sources, retrieved 4 February 2023, from http://www.originalsources.com/Document.aspx?DocID=8P8GJB7NW1CVWWY.