Although many of the commercial speech restrictions enacted in 1998 by legislative and regulatory bodies were quite onerous, some courts have signaled their willingness to afford relief to advertisers by striking down a variety of measures. Federal courts of appeals issued favorable commercial speech decisions involving topics as diverse as beer labeling, adult entertainment services, and arrestee information.

Beer Labeling

   In Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998), the U.S. Court of Appeals for the Second Circuit held that labels on beer bottles are commercial speech and, as such, entitled to some First Amendment protection. The court invalidated New York's denial of Bad Frog Brewery's application for its beer bottle labels, holding that the labels were not misleading or related to illegal activity and that the regulation did not directly advance the state's substantial interest in protecting children from vulgar advertising. The decision is noteworthy in part because the court found that offensive communications are so widespread in society that New York's limited action against the beer label was constitutionally unsound. "[A] state must demonstrate that its commercial speech limitation is part of a substantial effort to advance a valid state interest, not merely the removal of a few grains of offensive sand from a beach of vulgarity." Bad Frog Brewery, 134 F.3d at 100.

   The Bad Frog Brewery decision further solidifies the skeptical judicial view of commercial speech regulation enunciated in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). Particularly promising is the Second Circuit's evaluation of New York's speech restriction based on the larger context of other state efforts limiting exposure to vulgarity. This renewed emphasis on the need for narrow tailoring of restrictions on commercial speech - even in cases of highly unpopular speech - is a positive sign for future judicial review of these types of restrictions.

Canvassing for Adult Entertainment Services

   A Clark County, Nev., ordinance that targets the Las Vegas "Strip" by banning off-premises canvassing to advertise adult entertainment services could restrict not only purely commercial speech but also fully protected noncommercial speech, the U.S. Court of Appeals for the Ninth Circuit ruled in November 1998. S.O.C., Inc. v. County of Clark, 152 F.3d 1136 as amended by 160 F.3d 541 (9th Cir. 1998). The appellate court reversed a district court's order denying a preliminary injunction to adult entertainment entities challenging the ban. The Ninth Circuit also held that the county failed to prove that the ban was narrowly tailored to further the government's substantial interest in improving the pedestrian environment and reducing litter.

Sale of Arrestee Information

    In an earlier ruling in June, the Ninth Circuit held that a California statute prohibiting the release of arrestee names and addresses for commercial purposes is unconstitutional. United Reporting Publishing Corp. v. California Highway Patrol, 146 F.3d 1133 (9th Cir. 1998). The decision involves an amendment to the California Government Code adopted in 1996 that bars state and local law enforcement agencies from releasing arrestee information to people who intend to use it "directly or indirectly to sell a product or service." The provision does allow release of such information for "scholarly, journalistic, political, or governmental purpose, or ... for investigation purposes by a licensed private investigator." Before the code was amended, anyone could use the information for any purpose. The statute was challenged by United Reporting Publishing Corporation, which sells arrestee information to attorneys, insurance companies, counselors, and driving schools. The Ninth Circuit concluded that the statute failed the third prong of the Central Hudson test. "The myriad of exceptions [scholarly, journalistic, etc.] ... precludes the statute from directly and materially advancing the government's purported privacy interest," the court said. It agreed with the district court that the statute "appears to be more directed at preventing solicitation practices," since almost any other use of the information is acceptable. The court saw no need to address Central Hudson's fourth prong, which prohibits advertising restrictions from being more extensive than necessary.