The First Amendment to the United States Constitution provides that Congress shall make no law abridging (curtailing) the freedom of speech. Thus, free speech is only protected by the U.S. Constitution when it is the government that seeks to limit free speech. The First Amendment is inapplicable when a nongovernmental person or entity—such as a private business—seeks to limit free speech.
And some types of speech are afforded more protection than others. For example, commercial speech—speech that proposes a commercial transaction—is entitled to First Amendment protection, but less protection than political speech.
In the 1980 case Central Hudson Gas & Electric Corp. v. Public Service Commission, the U.S. Supreme Court developed a four-part test to determine whether commercial speech regulation violates the First Amendment:
1. Whether the commercial speech concerns a lawful activity and is not misleading;
2. Whether the government interest asserted to justify the regulation is "substantial";
3. Whether the regulation "directly advances" that government interest;
4. Whether the regulation is no more extensive than necessary to serve that interest.
In Texas, as in all states, the First Amendment to the U.S. Constitution protects freedom of speech from government infringement. This means that the government, including state and local authorities, cannot unduly restrict individuals' right to express themselves. However, this protection does not extend to private entities, such as businesses, which means that private businesses in Texas can set their own rules regarding speech on their premises. Regarding commercial speech, which includes advertising and other speech proposing a commercial transaction, it is protected under the First Amendment but to a lesser degree than political speech. The Central Hudson Gas & Electric Corp. v. Public Service Commission case established a four-part test to assess the constitutionality of commercial speech regulations. Texas, like other states, must adhere to this test when enacting regulations that affect commercial speech. This ensures that any restrictions on commercial speech are justified by a substantial government interest, directly advance that interest, and are not more extensive than necessary.
