It was significant to Coors whether its request was considered commercial or noncommercial speech
Commercial Versus Noncommercial Speech
It was significant to Coors whether its request was considered commercial or noncommercial speech because of the different levels of first amendment protection and resulting government regulation capabilities between the two options. The first amendment fully protects noncommercial speech unless the government can prove that restricting the noncommercial speech would fulfill a compelling government purpose. It is difficult for the government to develop this purpose for restricting noncommercial speech; therefore, noncommercial speech is considered fully protected. Commercial speech, however, has less protection by the first amendment. The limitation is designed for the government to limit commercial organizations’ potential to use unlawful practices, mislead consumers, or gain an unfair market advantage. If the government considers the commercial speech misleading or unlawful, the speech is unprotected under the first amendment, and any government action is constitutional. Suppose the commercial speech is deemed lawful and non-misleading. In that case, the government actions may be constitutional if the government has a substantial underlying interest, the restriction directly advances the underlying interest, and the restriction is no more extensive than needed to fulfill the interest (Langvardt et al., 2019, p. 82-88).
Alcohol Potency on Coors Label, Commercial Speech
Both parties agreed that the beer label’s information was considered commercial speech (Rubin v. Coors Brewing Co., 1995). A label is a form of advertisement for the beer’s sale, so anything on the label would be considered commercial speech (Langvardt et al., 2019, p. 87). Both parties agreed that displaying the alcohol content was non-misleading and lawful; therefore, the commercial speech could only be limited to intermediate protection by the first amendment. The government argued that it was necessary to restrict Coors from displaying the alcohol percentage as they may gain an unfair advantage by obtaining sales based on the beer’s potency. The court determined that the government failed to demonstrate that the prohibition would inhibit a potency war and that the prohibition would not advance the governments underlying interest (Langvardt et al., 2019, p. 87).
Labeled Cocaine Purity Hypothetical
If Coors decided to sell cocaine and disclose the purity of its cocaine, that would be considered commercial labeling. Like the alcohol potency on the beer label, the label would be considered an advertisement for the sale of cocaine, and anything on the label would be considered commercial speech (Langvardt et al., 2019, p. 87). However, cocaine is an illegal substance, so speech that supported its sale would be considered unlawful. Since the speech would be unlawful, it would no longer be protected under the first amendment, and the government would have full constitutional rights to limit the potency from being displayed on the label (Langvardt et al., 2019, p. 87).
References
Langvardt, A. W., Barnes, A. J., Prenkert, J. D., McCrory, M. A., & Perry, J. E. (2019). Business law: The ethical, global, and e-commerce environment (17th ed.). Retrieved from https://www.vitalsource.com
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995)
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