Truthful, nondeceptive commercial speech is subject to which standard?

• A. Strict Scrutiny
• B. Intermediate Scrutiny
• C. Rational Basis
• D. Per Se Invalid

Answer: (B)

Truthful, nondeceptive commercial speech is protected by the First Amendment but is reviewed under a form of intermediate scrutiny. The governing framework, established in Central Hudson, allows regulation of truthful commercial speech only if the government has a substantial interest, the regulation directly advances that interest, and it is not more extensive than necessary to achieve it. This places commercial speech between the highest protection given to political speech and the much looser scrutiny used for other types of regulation. So the correct standard is intermediate scrutiny. Strict scrutiny would require a compelling interest and narrow tailoring, which isn’t needed here; rational basis is too deferential to government regulation of commercial speech; and there is no separate “per se invalid” standard governing these restrictions.