Freedom of Speech and Press: Exceptions to the First Amendment

Freedom of Speech and Press:
Exceptions to the First Amendment
Henry Cohen
Legislative Attorney
October 16, 2009
Congressional Research Service
7-5700
www.crs.gov
95-815
CRS Report for Congress
P
repared for Members and Committees of Congress

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Freedom of Speech and Press: Exceptions to the First Amendment

Summary
The First Amendment to the United States Constitution provides that “Congress shall make no
law ... abridging the freedom of speech, or of the press.” This language restricts government both
more and less than it would if it were applied literally. It restricts government more in that it
applies not only to Congress, but to all branches of the federal government, and to all branches of
state and local government. It restricts government less in that it provides no protection to some
types of speech and only limited protection to others.
This report provides an overview of the major exceptions to the First Amendment—of the ways
that the Supreme Court has interpreted the guarantee of freedom of speech and press to provide
no protection or only limited protection for some types of speech. For example, the Court has
decided that the First Amendment provides no protection to obscenity, child pornography, or
speech that constitutes “advocacy of the use of force or of law violation ... where such advocacy
is directed to inciting or producing imminent lawless action and is likely to incite or produce such
action.”
The Court has also decided that the First Amendment provides less than full protection to
commercial speech, defamation (libel and slander), speech that may be harmful to children,
speech broadcast on radio and television, and public employees’ speech. Even speech that enjoys
the most extensive First Amendment protection may be subject to “regulations of the time, place,
and manner of expression which are content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of communication.” Furthermore,
even speech that enjoys the most extensive First Amendment protection may be restricted on the
basis of its content if the restriction passes “strict scrutiny” (i.e., if the government shows that the
restriction serves “to promote a compelling interest” and is “the least restrictive means to further
the articulated interest”).

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Freedom of Speech and Press: Exceptions to the First Amendment

Contents
Introduction ................................................................................................................................ 1
Obscenity.................................................................................................................................... 1
Child Pornography ...................................................................................................................... 2
Content-Based Restrictions ......................................................................................................... 3
Non-Content-Based Restrictions ................................................................................................. 4
Prior Restraint............................................................................................................................. 5
Commercial Speech .................................................................................................................... 6
Defamation ............................................................................................................................... 12
Speech Harmful to Children ...................................................................................................... 13
Children’s First Amendment Rights........................................................................................... 15
Time, Place, and Manner Restrictions........................................................................................ 16
Incidental Restrictions............................................................................................................... 18
Symbolic Speech....................................................................................................................... 19
Compelled Speech .................................................................................................................... 21
Radio and Television................................................................................................................. 24
Freedom of Speech and Government Funding ........................................................................... 26
Free Speech Rights of Government Employees and Government Contractors ............................ 30
Government Employees ...................................................................................................... 30
Government Contractors ..................................................................................................... 34
Public Forum Doctrine .............................................................................................................. 34

Contacts
Author Contact Information ...................................................................................................... 36

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Freedom of Speech and Press: Exceptions to the First Amendment

Introduction
The First Amendment to the United States Constitution provides that “Congress shall make no
law ... abridging the freedom of speech, or of the press.” This language restricts government both
more and less than it would if it were applied literally. It restricts government more in that it
applies not only to Congress, but to all branches of the federal government, and to all branches of
state and local government.1 It restricts government less in that it provides no protection to some
types of speech and only limited protection to others.
This report provides an overview of the major exceptions to the First Amendment—of the ways
that the Supreme Court has interpreted the guarantee of freedom of speech and press to provide
no protection or only limited protection for some types of speech.2 For example, the Court has
decided that the First Amendment provides no protection to obscenity, child pornography, or
speech that constitutes “advocacy of the use of force or of law violation ... where such advocacy
is directed to inciting or producing imminent lawless action and is likely to incite or produce such
action.”
The Court has also decided that the First Amendment provides less than full protection to
commercial speech, defamation (libel and slander), speech that may be harmful to children,
speech broadcast on radio and television, and public employees’ speech. Even speech that enjoys
the most extensive First Amendment protection may be subject to “regulations of the time, place,
and manner of expression which are content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of communication.” Furthermore,
even speech that enjoys the most extensive First Amendment protection may be restricted on the
basis of its content if the restriction passes “strict scrutiny” (i.e., if the government shows that the
restriction serves “to promote a compelling interest” and is “the least restrictive means to further
the articulated interest”).
Obscenity3
Obscenity apparently is unique in being the only type of speech to which the Supreme Court has
denied First Amendment protection without regard to whether it is harmful to individuals.
According to the Court, there is evidence that, at the time of the adoption of the First Amendment,
obscenity “was outside the protection intended for speech and press.”4 Consequently, obscenity
may be banned simply because a legislature concludes that banning it protects “the social interest
in order and morality.”5 No actual harm, let alone compelling governmental interest, need be
shown in order to ban it.

1 Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979).
2 Supreme Court cases supporting all the prohibitions and restrictions on speech noted in this and the next paragraph
are cited in footnotes accompanying the subsequent discussion of these prohibitions and restrictions.
3 For additional information, see CRS Report 95-804, Obscenity and Indecency: Constitutional Principles and Federal
Statutes, by Henry Cohen.
4 Roth v. United States, 354 U.S. 476, 483 (1957). However, Justice Douglas, dissenting, wrote: “[T]here is no special
historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted
the First Amendment.” Id. at 514.
5 Id. at 485.
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What is obscenity? It is not synonymous with pornography, as most pornography is not legally
obscene; that is, most pornography is protected by the First Amendment. To be obscene,
pornography must, at a minimum, “depict or describe patently offensive ‘hard core’ sexual
conduct.”6 The Supreme Court has created a three-part test, known as the Miller test, to determine
whether a work is obscene. The Miller test asks:
(a) whether the “average person applying contemporary community standards” would find
that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts
or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.7
The Supreme Court has clarified that only “the first and second prongs of the Miller test—appeal
to prurient interest and patent offensiveness—are issues of fact for the jury to determine applying
contemporary community standards.”8 As for the third prong, “[t]he proper inquiry is not whether
an ordinary member of any given community would find serious literary, artistic, political, or
scientific value in allegedly obscene material, but whether a reasonable person would find such
value in the material, taken as a whole.”9
The Supreme Court has allowed one exception to the rule that obscenity is not protected by the
First Amendment: one has a constitutional right to possess obscene material “in the privacy of his
own home.”10 However, there is no constitutional right to provide obscene material for private
use11 or even to acquire it for private use.12
Child Pornography13
Child pornography is material that visually depicts sexual conduct by children.14 It is unprotected
by the First Amendment even when it is not obscene; that is, child pornography need not meet the
Miller test to be banned. Because of the legislative interest in destroying the market for the

6 Miller v. California, 413 U.S. 15, 27 (1973).
7 Id. at 24 (citation omitted).
8 Pope v. Illinois, 481 U.S. 497, 500 (1987). In Hamling v. United States, 418 U.S. 87, 105 (1974), the Court noted that
a “community” was not any “precise geographic area,” and suggested that it might be less than an entire state. In
Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 577 (2002), the Supreme Court recognized that “Web
publishers currently lack the ability to limit access to their sites on a geographic basis,” and that therefore the use of
community standards to define “obscenity” “would effectively force all speakers on the Web to abide by the ‘most
puritan’ community’s standards.” Nevertheless, the Court found that use of community standards “does not by itself
render” a statute unconstitutional.” Id. at 585 (emphasis in original).
9 Pope v. Illinois, 481 U.S. at 500-501.
10 Stanley v. Georgia, 394 U.S. 557, 568 (1969).
11 United States v. Reidel, 402 U.S. 351 (1971).
12 United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973).
13 For additional information, see CRS Report 95-406, Child Pornography: Constitutional Principles and Federal
Statutes, by Henry Cohen.
14 New York v. Ferber, 458 U.S. 747, 764 (1982). The definition of “sexually explicit conduct” in the federal child
pornography statute includes “lascivious exhibition of the genitals or pubic area of any person [under 18], and “is not
limited to nude exhibitions or exhibitions in which the outlines of those areas [are] discernible through clothing.” 18
U.S.C. §§ 2256(2)(A)(v), 2252 note.
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exploitative use of children, there is no constitutional right to possess child pornography even in
the privacy of one’s own home.15
In 1996, Congress enacted the Child Pornography Protection Act (CPPA), which defined “child
pornography” to include visual depictions that appear to be of a minor, even if no minor is
actually used. The Supreme Court, however, declared the CPPA unconstitutional to the extent that
it prohibited pictures that are produced without actual minors.16 Pornography that uses actual
children may be banned because laws against it target “[t]he production of the work, not its
content”; the CPPA, by contrast, targeted the content, not the production.17 The government “may
not prohibit speech because it increases the chance an unlawful act will be committed ‘at some
indefinite future time.’”18 In 2003, Congress responded by enacting Title V of the PROTECT Act,
P.L. 108-21, which prohibits any “digital image, computer image, or computer-generated image
that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” It also
prohibits “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that
... depicts a minor engaging in sexually explicit conduct,” and is obscene or lacks serious literary,
artistic, political, or scientific value.
Content-Based Restrictions
Justice Holmes, in one of his most famous opinions, wrote:
The most stringent protection of free speech would not protect a man in falsely shouting fire
in a theater and causing a panic.... The question in every case is whether the words used ...
create a clear and present danger.19
In its current formulation of this principle, the Supreme Court held that “advocacy of the use of
force or of law violation” is protected unless “such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.”20 Similarly, the Court held
that a statute prohibiting threats against the life of the President could be applied only against
speech that constitutes a “true threat,” and not against mere “political hyperbole.”21
In cases of content-based restrictions of speech other than advocacy or threats, the Supreme Court
generally applies “strict scrutiny,” which means that it will uphold a content-based restriction

15 Osborne v. Ohio, 495 U.S. 103 (1990).
16 Ashcroft v. Free Speech Coalition, 435 U.S. 234 (2002).
17 Id. at 249; see also, id. at 242.
18 Id. at 253.
19 Schenck v. United States, 249 U.S. 47, 52 (1919).
20 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). See also, Stewart v. McCoy, 537 U.S. 993 (2002) (Justice Stevens’
statement accompanying denial of certiorari).
21 Watts v. United States, 394 U.S. 705, 708 (1969). See also, NAACP v. Claiborne Hardware Co., 458 U.S. 886
(1982); Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc), cert.
denied, 539 U.S. 958 (2003) (the “Nuremberg Files” case); Virginia v. Black, 538 U.S. 343, 360 (2003) (“Intimidation
in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person
or group of persons with the intent of placing the victim in fear of bodily harm or death.”).
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only if it is necessary “to promote a compelling interest,” and is “the least restrictive means to
further the articulated interest.”22
Thus, it is ordinarily unconstitutional for a state to proscribe a newspaper from publishing the
name of a rape victim, lawfully obtained.23 This is because there ordinarily is no compelling
governmental interest in protecting a rape victim’s privacy.24 By contrast, “[n]o one would
question but that a government might prevent actual obstruction to its recruiting service or the
publication of the sailing dates of transports or the number and location of troops.”25 Similarly,
the government may proscribe “‘fighting’ words—those which by their very utterance inflict
injury or tend to incite an immediate breach of the peace.”26 Here the Court was referring to
utterances that constitute “epithets or personal abuse” that “are no essential part of any exposition
of ideas,” as opposed to, for example, flag burning, which is discussed below, under “Symbolic
Speech.”
Non-Content-Based Restrictions
If the government limits speech, but its purpose in doing so is not based on the content of the
speech, then the limitation on speech may still violate the First Amendment, but it is less likely
than a content-based restriction to do so. This is because the Supreme Court applies less than
“strict scrutiny” to non-content-based restrictions. With respect to non-content-based restrictions,
the Court requires that the governmental interest be “significant” or “substantial” or “important,”
but not necessarily, as with content-based restrictions, “compelling.” And, in the case of non-
content-based restrictions, the Court requires that the restriction be narrowly tailored, but not, as
with content-based restrictions, that it be the least restrictive means to advance the governmental
interest.
Two types of speech restrictions that receive this “intermediate” scrutiny are (1) time, place, or
manner restrictions, and (2) incidental restrictions, which are restrictions aimed at conduct other
than speech, but that incidentally restrict speech. This report includes separate sections on these
two types of restrictions. In addition, restrictions on commercial speech, though content-based,
are subject to similar intermediate scrutiny; this report also includes a separate section on
commercial speech. Finally, bans on nude dancing and zoning restrictions on pornographic

22 Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115, 126 (1989). The
Court does not apply strict scrutiny to another type of content-based restrictions—restrictions on commercial speech,
which is discussed below.
23 The Florida Star v. B.J.F., 491 U.S. 524 (1989). The Court left open the question “whether, in cases where
information has been acquired unlawfully by a newspaper or by a source, the government may ever punish not only the
unlawful acquisition, but the ensuing publication as well.” Id. at 535 n.8 (emphasis in original). In Bartnicki v. Vopper,
532 U.S. 514 (2001), the Court held that a content-neutral statute prohibiting the publication of illegally intercepted
communications (in this case a cell phone conversation) violates free speech where the person who publishes the
material did not participate in the interception, and the communication concerns a public issue.
24 However, the Court did “not rule out the possibility that, in a proper case, imposing civil sanctions for publication of
the name of a rape victim might be ... overwhelmingly necessary to advance” a compelling state interest. Id. at 537.
25 Near v. Minnesota, 283 U.S. 697, 716 (1931).
26 Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Campus “hate speech” prohibitions at public colleges (the
First Amendment does not apply to private colleges) are apparently unconstitutional, even as applied to fighting words,
if they cover only certain types of hate speech, such as speech based on racial hatred. This conclusion is based on the
cross-burning case, R.A.V. v. City of St. Paul, infra note 138.
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theaters and bookstores, although discriminating on the basis of the content of speech, receive
intermediate scrutiny because, according to the Supreme Court, they are aimed at combating
“secondary effects,” such as crime, and not at the content of speech.27
Prior Restraint
There are two ways in which the government may attempt to restrict speech. The more common
way is to make a particular category of speech, such as obscenity or defamation, subject to
criminal prosecution or civil suit, and then, if someone engages in the proscribed category of
speech, to hold a trial and impose sanctions if appropriate. The second way is by prior restraint,
which may occur in two ways. First, a statute may require that a person submit the speech that he
wishes to disseminate—a movie, for example—to a governmental body for a license to
disseminate it—e.g., to show the movie. Second, a court may issue a temporary restraining order
or an injunction against engaging in particular speech—publishing the Pentagon Papers, for
example.
With respect to both these types of prior restraint, the Supreme Court has written that “[a]ny
system of prior restraint of expression comes to this Court bearing a heavy presumption against
its constitutional validity.”28 Prior restraints, it has held,
are the most serious and the least tolerable infringement on First Amendment rights.... A
prior restraint ... by definition, has an immediate and irreversible sanction. If it can be said
that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint
“freezes” it at least for the time. The damage can be particularly great when the prior
restraint falls upon the communication of news and commentary on current events.29
The Supreme Court has written that “[t]he special vice of a prior restraint is that communication
will be suppressed ... before an adequate determination that it is unprotected by the First
Amendment.”30 The prohibition on prior restraint, thus, is essentially a limitation on restraints
until a final judicial determination that the restricted speech is not protected by the First
Amendment. It is a limitation, for example, against temporary restraining orders and preliminary
injunctions pending final judgment, not against permanent injunctions after a final judgment is
made that the restricted speech is not protected by the First Amendment.31

27 For additional information on this subject, see CRS Report 95-804, Obscenity and Indecency:
Constitutional Principles and Federal Statutes, by Henry Cohen.
28 Freedman v. Maryland, 380 U.S. 51, 57, 58 (1965) (“a noncriminal process which requires the prior submission of a
film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards”); New York Times
Co. v. United States, 403 U.S. 713, 714 (1971) (injunction sought by United States against publication of the Pentagon
Papers denied).
29 Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976) (striking down a court order restraining the
publication or broadcast of accounts of confessions or admissions made by the defendant at a criminal trial).
Injunctions that are designed to restrict merely the time, place, or manner of a particular expression are subject to a less
stringent application of First Amendment principles; see, “Time, Place, and Manner Restrictions,” below.
30 Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 390 (1973); see also, Vance v.
Universal Amusement Co., 445 U.S. 308, 315-316 (1980) (“the burden of supporting an injunction against a future
exhibition [of allegedly obscene motion pictures] is even heavier than the burden of justifying the imposition of a
criminal sanction for a past communication”).
31 See, Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48
Duke Law Journal 147, 169-171 (1998).
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In the case of a statute that imposes prior restraint, “a prescreening arrangement can pass
constitutional muster if it includes adequate procedural safeguards.”32 These procedural
safeguards, the Court wrote, include that “the burden of proving that the film is unprotected
expression must rest on the censor,” and “that the censor will, within a specified brief period,
either issue a license or go to court to restrain showing the film.”33 In the case of time, place, or
manner restrictions (and presumably other forms of speech that do not receive full First
Amendment protection), lesser procedural safeguards are adequate.34
Prior restraints are permitted in some circumstances. The Supreme Court has written, in dictum,
“that traditional prior restraint doctrine may not apply to [commercial speech],”35 and the Court
has not ruled whether it does. “The vast majority of [federal] circuits ... do not apply the doctrine
of prior restraint to commercial speech.”36 “Some circuits [however] have explicitly indicated that
the requirement of procedural safeguards in the context of a prior restraint indeed applies to
commercial speech.”37
Furthermore, “only content-based injunctions are subject to prior restraint analysis.”38 In addition,
prior restraint is generally permitted, even in the form of preliminary injunctions, in intellectual
property cases, such as those for infringements of copyright or trademark.39
Commercial Speech
“The Constitution ... affords a lesser protection to commercial speech than to other
constitutionally guaranteed expression.”40 Commercial speech is “speech that proposes a
commercial transaction.”41 That books and films are published and sold for profit does not make
them commercial speech; that is, it does not “prevent them from being a form of expression

32 Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 571 n.13.
33 Freedman, supra footnote 28, 380 U.S. at 58, 59.
34 Thomas v. Chicago Park District, 534 U.S. 316, 322-323 (2002).
35 Central Hudson, supra footnote 32, 447 U.S. at 571 n.13.
36 Bosley v. WildWetT.com, 310 F. Supp. 2d 914, 930 (N.D. Ohio 2004).
37 New York Magazine v. Metropolitan Transportation Authority, 136 F.3d 123, 131 (2d Cir. 1998), cert. denied, 525
U.S. 824 (1998); citing as examples, Desert Outdoor Adver. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir.
1996); In re Search of Kitty’s East, 905 F.2d 1367, 1371-72 & n.4 (10th Cir. 1990).
38 DVD Copy Control Association, Inc. v. Bunner, 75 P.3d 1, 17 (Cal. 2003) (a “prior restraint is a content-based
restriction on speech prior to its occurrence” (italics in original)). For the test regarding content-neutral injunctions, see
the section on “Time, Place, and Manner Restrictions,” below.
39 Bosley, supra footnote 36, at 930; Lemley and Volokh, supra footnote 31 (arguing that intellectual property should
have the same First Amendment protection from preliminary injunctions as other speech).
40 United States v. Edge Broadcasting Co., 509 U.S. 418 (1993).
41 Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 482 (1989) (emphasis in original). In
Nike, Inc. v. Kasky, 45 P.3d 243 (2002), cert. dismissed, 539 U.S. 654 (2003), Nike was sued for unfair and deceptive
practices for allegedly false statements it made concerning the working conditions under which its products were
manufactured. The California Supreme Court ruled that the suit could proceed, and the Supreme Court granted
certioriari, but then dismissed it as improvidently granted, with a concurring and two dissenting opinions. The issue left
undecided was whether Nike’s statements, though they concerned a matter of public debate and appeared in press
releases and letters rather than in advertisements for its products, should be deemed “‘commercial speech’ because they
might affect consumers’ opinions about the business as a good corporate citizen and thereby affect their purchasing
decisions.” Id. at 657 (Stevens, J., concurring). Nike subsequently settled the case.
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whose liberty is safeguarded [to the maximum extent] by the First Amendment.”42 Commercial
speech, however, may be banned if it is false or misleading, or if it advertises an illegal product or
service. Even if fits in none of these categories, the government may regulate it more than it may
regulate fully protected speech. In addition, the government may generally require disclosures to
be included in commercial speech; see the section on “Compelled Speech,” below.
The Supreme Court has prescribed the four-prong Central Hudson test to determine whether a
governmental regulation of commercial speech is constitutional. This test asks initially (1)
whether the commercial speech at issue is protected by the First Amendment (that is, whether it
concerns a lawful activity and is not misleading) and (2) whether the asserted governmental
interest in restricting it is substantial. “If both inquiries yield positive answers,” then to be
constitutional the restriction must (3) “directly advance[ ] the governmental interest asserted,”
and (4) be “not more extensive than is necessary to serve that interest.”43
The Supreme Court has held that, in applying the third prong of the Central Hudson test, the
courts should consider whether the regulation, in its general application, directly advances the
governmental interest asserted. If it does, then it need not advance the governmental interest as
applied to the particular person or entity challenging it.44 Its application to the particular person or
entity challenging it is relevant in applying the fourth Central Hudson factor, although this factor
too is to be viewed in terms of “the relation it bears to the overall problem the government seeks
to correct.”45 The fourth prong is not to be interpreted “strictly” to require the legislature to use
the “least restrictive means” available to accomplish its purpose. Instead, the Court has held,
legislation regulating commercial speech satisfies the fourth prong if there is a reasonable “fit”
between the legislature’s ends and the means chosen to accomplish those ends.46
The Supreme Court has applied the Central Hudson test in all the commercial speech cases it has
decided since Central Hudson, and we discuss the 10 most recent below, in chronological order.47
In nine of these cases, the Court struck down the challenged speech restriction; it has not upheld a
commercial speech restriction since 1993. In its most recent commercial speech case, Thompson
v. Western States Medical Center, the Court noted that “several Members of the Court have
expressed doubts about the Central Hudson analysis and whether it should apply in particular
cases.” These justices believe that the test does not provide adequate protection to commercial
speech, but the Court has found it unnecessary to consider whether to abandon the test, because it
has been striking down the statutes in question anyway.
In Cincinnati v. Discovery Network, Inc., the Court struck down a Cincinnati regulation that
banned newsracks on public property if they distributed commercial publications, but not if they
distributed news publications.48 As for the first two prongs of the Central Hudson test, the Court

42 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-502 (1952).
43 Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, supra footnote 32, 447 U.S. at
566 (1980).
44 See, Edge Broadcasting, supra footnote 40, 509 U.S. at 427.
45 Id. at 430.
46 Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480 (1989).
47 We do not include among the 10 the three cases (discussed below, at the end of the section on “Compelled Speech” )
involving assessments for government-compelled advertisements, because the Court did not apply the Central Hudson
test in these cases.
48 507 U.S. 410 (1993).
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