Commercial speech is a prominent category of speech that receives an intermediate level of First Amendment protection.
The decision marked the first time that the Supreme Court has applied "strict scrutiny" -- the highest level of First Amendment protection -- to cable programming.
Most liberals used to agree that political speech deserves the highest level of First Amendment protection from government investigation and control.
Nor does anyone dispute that commercial speech is not entitled to as high a level of First Amendment protection as many other forms of speech, including that of charities, political parties and religious institutions.
The court has long drawn a distinction between pure issue advocacy, which merits the highest level of First Amendment protection, and campaign ads, the financing of which Congress can regulate to protect the integrity of the electoral process.
As such, she said, the case was governed by the lower level of First Amendment scrutiny the court applies to content-neutral laws that regulate conduct and have only an incidental effect on expression.
He has not taken a categorical approach in free speech cases and has instead adjusted the level of First Amendment protection to the value of the speech in question.
In applying "strict scrutiny," the highest level of First Amendment protection, to cable programming, Justice Kennedy identified what he called a "key difference" between cable and broadcast television and radio, for which the court has applied a lower level of scrutiny and permitted more regulatory leeway.
Part I describes how commercial speech and expressive conduct are different forms of "hybrid" speech — each has a different mixture of "protected" elements that merit a heightened level of First Amendment protection and of "regulable" elements that deserve only rational basis review.
[103 ] See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 572 (1991) (Scalia, J., concurring in the judgment) ("[T]he challenged regulation must be upheld, not because it survives some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not subject to First Amendment scrutiny at all".).
