December 1, 2011

Time for the demise of the commercial speech doctrine

By Deborah J. La Fetra Senior Attorney

Less than a decade ago, the United States Supreme Court came extremely close to potentially overturning the commercial speech doctrine and restoring the First Amendment’s broad protection of free speech to all speakers, regardless of their profit motive. That case, Nike v. Kasky, involved Nike’s press releases and other communications in which the company defended itself against charges of abusive labor practices in foreign countries. After full briefing and oral argument, the Court dismissed the case without deciding it. Justice Breyer noted that the dismissal resulted in a “heavy First Amendment price.”

Now the Court has another chance to revisit the so-called commercial speech doctrine, in a case out of Missouri where the state supreme court held that an occupational licensing law could bar unlicensed truthful speech on related matters.  Asking the Court to consider the issue is Kansas City Premier Apartments, an internet-based service which provides members of the public with information about living and renting real estate in the Kansas City area. The website includes searchable real estate advertisements, information about the advantages of living in the Kansas City area, a blog, and other social media outlets that allow owners or managers of rental properties to notify prospective renters of the availability of special offers. The Missouri Supreme Court held that this business model, which relies on contracts between property owners and the website – and costs consumers nothing – ran afoul of real estate brokerage licensing statutes that make it unlawful for any unlicensed person to list real estate for sale, lease, rental, exchange on behalf of a property owner, for compensation.

Pacific Legal Foundation, joined by the Cato Institute, filed this amicus brief supporting Kansas City Premier Apartments’ petition to the Supreme Court and our fingers are crossed that, this time, the Court will see it through.

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