Bd. of Trs. v. Fox - 492 U.S. 469, 109 S. Ct. 3028 (1989)

Rule:

The test for identifying commercial speech is whether the party seeks to hold propose a commercial transaction.

Facts:

A regulation of the State University of New York generally prohibited the operation of private commercial enterprises in student dormitories. A company marketed housewares to college students by means of a demonstration and offer of products for sale to groups of 10 or more prospective buyers at gatherings assembled and hosted by one of those buyers, for which the host or hostess stood to receive some bonus or reward. After a company representative who had been conducting such a presentation in a student's dormitory room at a state university campus refused to leave upon request by the campus police, the police arrested the representative and charged her with trespass, soliciting without a permit, and loitering. Several students then sued various university-related officials and entities in the United States District Court for the Northern District of New York and sought a declaratory judgment that the regulation violated the Federal Constitution's First Amendment, in prohibiting the students (1) from hosting and attending company demonstrations, and (2) from having discussions with other "commercial invitees" in the students' rooms. The company joined the students as a plaintiff, but eventually dropped out as a party. The District Court granted a preliminary injunction, but, after a trial, found for the university, on the ground that (1) the dormitories did not constitute a public forum for purpose of commercial activity, and (2) the restrictions on speech were reasonable in light of the dormitories' purpose. On appeal, the United States Court of Appeals for the Second Circuit, reversing, expressed the view that (1) it was unclear whether the regulation, as a restriction on commercial speech, directly advanced the state's asserted interests and, if so, whether the regulation was the least restrictive means to that end; and (2) the judgment should be remanded to the District Court for a suitable order based upon appropriate findings on those points

Issue:

Was the least-restrictive-means test held applicable, under First Amendment's free speech provisions, to State University of New York prohibition on company's presentations in students' dormitory rooms?

Answer:

No

Conclusion:

The Court held that, under the free speech provisions of the First Amendment, (1) the principal type of expression at issue, under the circumstances, was commercial speech which was not inextricably intertwined with noncommercial speech; (2) in commercial-speech analysis, what is required is not necessarily the least restrictive means, but a means narrowly tailored to achieve the desired objective; (3) the students, under the circumstances, could invoke the overbreadth doctrine to attack the regulation; (4) it is not generally desirable to proceed to an overbreadth issue unnecessarily, that is, before it is determined that a statute would be valid as applied; and (5) a remand was necessary for a determination of the validity of the regulation's application to the commercial and noncommercial speech that was the subject of the complaint and, if the regulation's application to the speech in either category was found to be valid, for a determination whether substantial overbreadth nonetheless made the regulation unenforceable.