Rubin v Coors Brewing Co

CASE CITATION: Rubin v. Coors Brewing Co. (514 US 476), 1995

“The rules and principals of commercial law are of ancient origin. Throughout the centuries merchants engaged in trade and commerce have recognized customs and usages which regulate and control their conduct. Gradually over the years a body of law developed…” (Robert & Corley, 312) Commercial speech arose in 1942 when the Supreme Court announced that the First Amendment does not protect it. As the years went on, on the “Bicentennial of our Republic”, the Courts position was reversed and they declared that the First Amendment protects commercial speech. But they court did say that commercial speech should receive less protection then noncommercial speech. That brings us to the definitions of commercial and noncommercial speech.
“Noncommercial speech, embodied in the phrases ‘freedom of speech’ and ‘freedom of expression,’ is entitled to virtually full first amendment protection; hence, the speaker is
granted considerable latitude in stating a position…Commercial speech is generally
considered to be communications that have the sale of a product or service as their
ultimate goal. Content regulation of commercial speech is allowed to prevent false,
deceptive, or misleading information from being transmitted”(Boedecker and Morgan, 1).
Some cases that have affected the First Amendment and Commercial speech are: Valentine v. Chrestensen (1942), the U.S. Supreme Court first declared that the Constitution placed no restraints on government regulation of commercial advertising. Until this time there wasn’t anything that distinguished between commercial and noncommercial communications. Then in 1975 in Bigelow v. Virginia the court said that the, “the government cannot restrict advertising where the commercial activity itself is legal and further noted that the ‘…activity advertised pertained to constitutional interests”(Boedecker and Morgan, 2). There were limitations placed on time, place, and manner and the court could also enforce rules that dealt with false, deceptive, or misleading advertising. Five years later, the Central Hudson Gas & Electric Corp. v. Public Service Commission (1980) developed a four-part breakdown for commercial speech. Throughout the courts case it used these four steps, “(1) Determine whether the expression is protected by the First Amendment, that is, does it involve lawful activity and not mislead the audience? (2) Does the government have a substantial interest to be achieved by restricting the speech? (3) Does the regulation directly advance the government’s interest? (4) Is the regulation more extensive then necessary to achieve that interest?” (Boedecker and Morgan, 1) this was a significant move in the direction for commercial speech. “The currently used Central Hudson test creates an artificial distinction between ‘commercial’ and ‘noncommercial’ speech” (Coach, 3). The issues involved in Central Hudson represents a change in direction in terms of deciding what degree of protection to grant commercial statements. It includes a judgement about the importance of regulating the subject matter or activity in question and therefor withdrew some of the protection granted upon commercial speech in the previous year. In summary, more types of communication are moving toward the commercial speech category, which means more first amendment protection for commercial speech. Therefor, there are two problems that marketers face when it come to commercial speech, identifying commercial speech and applying it to the commercial speech standard.


In broad terms, is the speech actually commercial? This is one of the simplest issues throughout a commercial speech case. So if the answer is “yes” and the speech is found to be commercial, then should it receive a lesser degree of protection? Throughout all the commercial speech cases during the years this has been the question. But, the legal issue dealing with the First Amendment in Rubin v. Coors Brewing Co. was, is there a First Amendment right to disclose the alcohol content of beer on the label? The case also dealt with the idea of “strength wars.” The Bureau of Alcohol, Tobacco, and Firearms (BATF) in the U.S. Treasury Department had prohibited beer labels from displaying alcohol content because of the fact that it would cause companies to have wars, as to which beer had the stronger alcohol content. The courts answer was yes, “Section 5 of the Federal Alcohol Administration Act, prohibiting beer labels from displaying alcohol content, held to violate commercial speech protections of Federal Constitution’s First amendment.” (Rubin v. Coors Brewing Company Case, LexisNexis, 1)

The majority opinion of