When is commercial speech protected, and when is it not?

Hypo 1: Bob opens a used car dealership. In his ads, he claims every vehicle has been carefully inspected and is in perfect condition. In reality, Bob doesn't inspect the cars at all and many have serious mechanical problems. After numerous customer complaints, the state Attorney General's office sues Bob for false advertising and deceptive trade practices. Result: Bob's ads are not protected commercial speech. He lied about the condition of the cars to trick people into buying them. This is textbook false and deceptive advertising. The government has the authority to stop this misleading commercial speech and penalize Bob under state consumer protection laws. His First Amendment rights do not shield him from liability for false ads.

Hypo 2: Sam starts selling a "miracle" weight loss supplement online. His website has customer testimonials claiming they lost over 50 pounds in a month without dieting or exercise. However, in the fine print there is a disclaimer that these results are not typical. The FDA investigates Sam for deceptive marketing of a supplement and orders him to take down the misleading claims. Result: While Sam included a small print disclaimer, a court would likely find his ads to be deceptive as a whole. The prominent and extraordinary claims, combined with the testimonials, create an overall misleading impression for consumers that is not cured by the disclaimer. The unnaturally large weight loss claims also inherently risk deceiving people. The government, through the FDA, has the right to restrict this misleading commercial speech. Sam's First Amendment rights do not protect deceptive supplement ads.

Hypo 3: Amy owns a small bakery. She puts up a billboard saying "Amy's Donuts - Baked Fresh Every Morning!" However, the health department discovers that Amy actually makes the donuts the night before. They fine Amy and order her to take down the misleading billboard ad. Result: This is a closer case, but Amy's ad is likely still protected commercial speech, even if it's not 100% accurate. Her ad is truthful in the sense that the donuts are baked fresh daily, even if not technically in the morning. The ad does not seem inherently misleading, as customers are still getting a fresh product. A minor inaccuracy about the exact time of production likely does not rise to the level of deception that the government can prohibit. Amy may have a valid First Amendment defense against the health department's action.

Hypo 4: Bob launches a mail-order service selling magic mushrooms. His website and social media ads promote the mushrooms as fun and safe ways to "expand your mind." However, magic mushrooms are illegal controlled substances under federal law. The DEA shuts down Bob's site and arrests him for advertising illegal drugs. Result: Bob's speech is not protected at all. Advertising illegal products or services, like banned drugs, is categorically not covered by the First Amendment. The government, through the DEA, has full authority to stop this promotion of criminal activity. Bob's operation is not shielded by any free speech rights.