Which category is typically reviewed under intermediate scrutiny for speech regulation?

Which category is typically reviewed under intermediate scrutiny for speech regulation?

• A. Commercial speech
• B. Political speech
• C. Obscenity
• D. True threats

Answer: (A)

Commercial speech sits between fully protected political speech and the unprotected categories, so it is reviewed under intermediate scrutiny. In practice, courts use the Central Hudson test for regulation of truthful, non-misleading advertising for legal goods or services. First, the speech must be lawful and not misleading to have protection at all. Then the government must show a substantial interest in regulating the speech. The regulation must directly advance that interest and be narrowly tailored—meaning it should not be more extensive than necessary to achieve the ends. If the speech is false or relates to illegal activity, the protection is weaker, making regulation easier to uphold. Because commercial advertising is protected but not with the full strength given to political speech, it is the category typically analyzed under intermediate scrutiny.

Commercial speech sits between fully protected political speech and the unprotected categories, so it is reviewed under intermediate scrutiny. In practice, courts use the Central Hudson test for regulation of truthful, non-misleading advertising for legal goods or services. First, the speech must be lawful and not misleading to have protection at all. Then the government must show a substantial interest in regulating the speech. The regulation must directly advance that interest and be narrowly tailored—meaning it should not be more extensive than necessary to achieve the ends. If the speech is false or relates to illegal activity, the protection is weaker, making regulation easier to uphold. Because commercial advertising is protected but not with the full strength given to political speech, it is the category typically analyzed under intermediate scrutiny.