Q: My company owns a website and private news source for a trade Industry. We are having concerns about our First Amendment protections. The website and news company is a business operation of our parent company. I would like to inquire about whether our direct ownership of the site conflicts with any First Amendment or journalism laws. For example, are we not protected by the same rights because the site is not an official news source, but a privately owned interest?
A: From what I understand, is a trade news website that is operated by a commercial venture working in the same trade. Whether or not the information contained on your website is afforded the same First Amendment protections as traditional news outlets, such as the New York Times, would depend on whether the information you published would be considered commercial or non-commercial speech.
The Supreme Court in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. held that commercial speech, which is defined as an expression that “propose[s] a commercial transaction,” is protected by the First Amendment. 425 U.S. 748, 762 (1976).
However, First Amendment protection afforded to commercial speech is less than that given to other forms of constitutionally guaranteed expression. Central Hudson Gas v. Public Service Commission, 447 U.S. 557, 563 (1980).
Three factors are considered in deciding whether speech is commercial:
(1) is the speech is an advertisement;
(2) does the speech refer to a specific product or service; and
(3) does the speaker have an economic motivation for the speech. Bolger v. Youngs Drug Products, Corp., 463 U.S. 60, 66-67 (1983).
In Central Hudson, the Court articulated a four-part test for determining whether the government may regulate commercial speech, which involves:
(1) a determination of whether the advertising is false or deceptive,
(2) whether there is a substantial governmental interest in regulating the speech,
(3) whether the law directly advances the government’s interest, and
(4) whether the regulation of speech is no more extensive than necessary to achieve the government’s interest. Central Hudson Gas, 447 U.S. at 566.
Of course, government regulation of speech is not the only area where the distinction between commercial and non-commercial speech would come into play.
This may also be a factor in determining speech issues such as those related to defamation and copyright, for example. See, e.g., United States Healthcare v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 939 (3d Cir. 1990) (advertisements were not entitled to heightened constitutional protection in connection with defamation cause of action because they were commercial speech); Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 849-50 (11th Cir. 1990) (First Amendment was not applicable as defense to copyright and Communications Act violations given speech was commercial).
As you can see, the inquiry is necessarily fact specific, but initially requires an analysis of whether the speech you reference could be characterized as commercial speech.
Ownership of the website by a commercial vendor would probably not necessarily automatically place the speech within the commercial speech category.
However, other factors, such as the extent that the news website invites viewers to make a commercial transaction, would probably come into play. Please also keep in mind that with respect to the internet, special laws, such as the Communications Decency Act, might provide an additional layer of protection to the extent that content on your website is posted by third-party users. See, e.g., 47 U.S.C. Section 230(c)
(1) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”).
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.