The Stubborn Survival of the Central Hudson Test for Commercial Speech

This Article examines the persistence of the Central Hudson standard in the face of multiple challenges as well as larger implications of its survival. Part I provides a brief overview of the Court’s commercial speech doctrine and the spectrum of criticism of Central Hudson for its allegedly excessive or inadequate protection of expression. Part II surveys a series of developments, especially in the last decade, that threaten to supersede Central Hudson’s “intermediate” standard of scrutiny for commercial speech restrictions. In response, Part III explains how none of these phenomena have resulted in the abandonment of the Central Hudson regime.

Notably, lower courts have devised a variety of strategies for avoiding constructions of Supreme Court decisions that would overthrow Central Hudson. The Article concludes that Central Hudson’s longevity represents more than judicial inertia, a doctrinal quirk, or a meaningless framework. Rather, the standard has served to maintain a degree of stability in an area that has witnessed shifting ideological predilections. In this respect, it is like other important criteria and concepts whose evolving interpretations have not defeated their legitimacy.