Alito at Hearings Discusses Free Speech and Advertising

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By: E&P staff

For most viewers and the media, it certainly was not the highlight of the Wednesday hearings, but one exchange between a U.S. Senator and Samuel Alito, the nominee for the U.S. Supreme Court, touched on a newspaper advertising issue and “commercial speech.”

Here from the transcript Senator Mike DeWine (R-Ohio) asks him about the case, followed by Alito’s response.

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SENATOR DEWINE: In reviewing your cases, I notice that you are certainly familiar with the issue of commercial speech. In Pitt News case, for instance, you struck down a Pennsylvania statute that barred paid alcohol advertisements in newspapers affiliated with colleges and universities.

Let me ask you, Judge: Based on your experience with this and other cases, what is your view about the distinction between commercial speech and noncommercial speech? And is there a commonsense difference between these two types of speeches? And have you found that case law supports any — any distinction? And how, if confirmed, will you approach the so-called commercial speech claims under the First Amendment?

JUDGE ALITO: Well, there’s a debate about how much protection commercial speech should have. There are those who argue that the distinction between commercial speech and noncommercial speech should be eliminated.

The Supreme Court views commercial speech differently. And while it is strict about any limitation of — regarding accurate information about prices, it limits — it permits greater restriction of commercial speech under current case law than it does with respect to other types of speech.

And the theory, as I understand it, is that commercial speech is more durable. At least that’s part of the theory. In other words, there’s a — there’s such a great incentive for people who are selling things to engage in advertising and other forms of commercial speech that it’s less likely to be driven out than speech on other issues where the financing may not be as extensive.

In the Pitt News case, what I had to apply was the question of whether there was sufficient tailoring. There was a compelling interest for what was done there, which was to restrict advertising about alcohol in a publication that was affiliated with an educational institution.

But based on the facts there, it just did not seem to be tailored at all. This was a newspaper that I think 75 percent of the people who received it — and it’s connected with the University of Pittsburgh — were people over the drinking age. And maybe even more to the point, this publication was distributed free on campus and in newspaper boxes next to a number of others that contained commercial publications. And they both advertised establishments and events in the area of the university. And the others were full of information about alcoholic beverages. And those were free, too.

So while the problem of under-age drinking and abusive drinking on college campuses is a very serious issue and the Pennsylvania legislature recognized that, and we certainly didn’t question that, that it is an issue of critical importance, it seemed quite unrealistic to think that this regulation, which only applied to The Pitt News and not to these other publications, was tailored sufficiently.

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