Amicus Curiae Brief — Council For Responsible Nutrition, Petitioner v. Letitia James, in Her Official Capacity as New York Attorney General

No. 25-1145

In the Supreme Court of the United States

_________

C OUNCIL FOR R ESPONSIBLE NUTRITION ,

Petitioner,

v.

L ETITIA J AMES , IN HER OFFICIAL CAPACITY AS

N EW Y ORK A TTORNEY G ENERAL ,

_________

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

_________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

_________

ETHAN W. BLEVINS

Counsel of Record

Pacific Legal Foundation

839 W 3600 S

Bountiful, Utah 84010

(916) 419-7111

EBlevins@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

TABLE OF CONTENTS

Identity and interest of amicus curiae ................ 1

Introduction and summary of argument ............. 2

Argument ............................................................ 4

I.

The commercial speech test clashes with core

First Amendment principles ............................ 4

II.

There is no sound basis for distinguishing

between commercial and noncommercial

speech ............................................................... 8

III. The rationales for the commercial speech test

do not withstand scrutiny .............................. 11

A. Regulated party expertise .......................... 11

B. Hardiness of commercial speech ................ 13

C. First Amendment centrality ...................... 15

Conclusion ........................................................ 18

ii

TABLE OF AUTHORITIES

Page(s)

Cases:

44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996) ....................................... 3, 16

Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002) ............................................. 8

Bolger v. Youngs Drug Products Corp.,

463 U.S. 60 (1983) ......................................... 8, 12

Brown v. Ent. Merch. Ass’n,

564 U.S. 786 (2011) ..................................9-10, 16

Central Hudson Gas & Electric v. Pub. Serv.

Comm’n of N.Y.,

447 U.S. 557 (1980) ........................ 2-7, 11-13, 18

Chiles v. Salazar,

146 S.Ct. 1010 (2026) ................ 2, 4, 6, 11, 16, 18

Citizens United v. FEC,

558 U.S. 310 (2010) ......................................... 5-6

Council for Responsible Nutrition v. James,

159 F.4th 155 (2d Cir. 2025) .............................. 2

Greater New Orleans Broad. Ass’n v.

United States,

527 U.S. 173 (1999) ........................................... 12

Iancu v. Brunetti,

588 U.S. 388 (2019) ............................................. 5

Lorillard Co. v. Reilly,

533 U.S. 525 (2001) ............................................. 3

MacDonald v. Sabando,

No. 25-2090, _ F.4th _ (3d Cir. 2025) .................. 1

Molieri v. Bonham,

No. 2:25-cv-02832-JAM-CSK

(E.D. Cal. 2025) ................................................... 1

iii

Ohralik v. Ohio State Bar Ass’n,

436 U.S. 447 (1978) ..................................... 11, 15

Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75 (1998) ............................................. 17

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ......................................... 4, 6

Rosenberger v. Rector and

Visitors of Univ. of Va.,

515 U.S. 819 (1995) ............................................. 4

Rubin v. Coors Brewing Co.,

514 U.S. 476 (1995) ........................................... 12

Slaughter-House Cases,

83 U.S. 36 (1872) ............................................... 17

Snyder v. Phelps,

562 U.S. 443 (2011) ............................................. 8

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ............................................. 5

Texas v. Johnson,

491 U.S. 397 (1989) ............................................. 8

United States v. Alvarez,

567 U.S. 709 (2012) ........................................... 12

United States v. O’Brien,

391 U.S. 367 (1968) ........................................... 14

United States v. Playboy Enter. Grp., Inc.,

529 U.S. 803 (2000). ............................................ 6

Va. State Bd. of Pharmacy v. Va. Citizens

Consumer Council,

425 U.S. 748 (1976) ........................................... 13

Valentine v. Chrestensen,

316 U.S. 52 (1942) ............................................. 16

Wavehuggers, LLC v. Cal. Dep’t of Parks & Rec.,

No. 3:25-cv-02215-RSH-BJW

(S.D. Cal. 2025) .................................................... 1

iv

West Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ........................................... 15

Statues:

N.Y. Gen. Bus. Law § 391-oo(1)(a) ........................... 2

Miscellaneous:

Barney, Joshua, GLP-1 Drugs May Not

Provide Key Weight-Loss Benefit, UVA

Experts Caution, Univ. of Va. Sch. of

Educ. & Hum. Dev. (Apr. 8, 2024),

https://tinyurl.com/yu3bk6zu .............................. 7

BeVier, Lillian, The First Amendment and

Political Speech,

30 Stanford L. Rev. 299 (1978) ......................... 15

Calvert, Clay & Papandrea, Mary-Rose,

The End of Balancing? Text, History &

Tradition in First Amendment Speech

Cases After Bruen,

18 Duke J. Const. L. & Pub. Pol’y 59 (2023) .... 16

Carbonara, David, The Carousel from Mad

Men’s Season 1 Finale (Sep. 1, 2023),

https://tinyurl.com/3jeayxyc .............................. 11

The Daily Wire, Jeremy’s Razors: The

Greatest Commercial Ever

(YouTube, Mar. 22, 2022),

https://www.youtube.com/watch?v=s92U

MJNjPIA .......................................................... 8-9

Dietary Supplement Regulatory Uniformity

Act, H.R. 7366, 119th Cong., § 2 (2026) ............ 14

GeForce, Nvidia,

https://www.nvidia.com/en-us/geforce/

(last accessed May 1, 2026) ............................... 14

v

Guardian News, Gillette’s “We believe: the

best men can be” razors commercial takes

on toxic masculinity

(YouTube, Jan. 14, 2019),

https://www.youtube.com/watch?v=UYa

Y2Kb_PKI ............................................................ 9

Hamm, Richard, Off the Streets: The Origins

of the Doctrine of Commercial Speech,

57 Am. J. Legal Hist. 495 (2017) ...................... 17

Hims & Hers, Sick of the System

(YouTube, Feb. 9, 2025),

https://www.youtube.com/watch?v=l5l6Q

MNnqoc ................................................................ 9

Hims & Hers, Rich People Live Longer

(YouTube, Jan. 29, 2026),

https://www.youtube.com/watch?v=aZ7Z

5LTJWHM ........................................................... 3

Howard, Alan, The Mode in the Middle:

Recognizing a New Category of Speech

Regulations for Modes of Expression,

14 UCLA Ent. L. Rev. 47 (2007) ......................... 6

Kozinski, Alex & Banner, Stuart, The Anti-History

and Pre-History of Commercial Speech,

71 Tex. L. Rev. 747 (1993) ................................. 16

Mad Men, season 1, episode 13,

“The Wheel” (AMC, Oct. 18, 2007) .................... 10

Memorandum and Order, Cozy Inn, Inc. v.

City of Salina, No. 24-cv-01027-TC,

2025 WL 3223806 (D.C. Kan. 2025) ................. 10

60 Minutes, Doctors explain how Wegovy

and Ozempic work

(YouTube, Jan. 1, 2023),

https://www.youtube.com/watch?v=QO

5GHr7vZBU ......................................................... 5

vi

Moynahan, Brian, God’s Bestseller (2003) ............. 15

OrthoInfo, Creatine Supplements

(last accessed May 1, 2026),

https://tinyurl.com/43hybyh9 .............................. 7

Post, Robert, The Constitutional Status of

Commercial Speech,

48 UCLA L. Rev. 1 (2000) ................................. 15

Seddiq, Oma & Eastland, Maggie, House

Seeks Say Over AI Chip Sales After

Nvidia’s China Win, Bloomberg (Jan. 21,

2026), https://tinyurl.com/2nr52fy4 .................. 14

Shanor, Amanda, The New Lochner,

2016 Wis. L. Rev. 133, 151 (2016) ....................... 6

Thorne, Hero film (YouTube, Sep. 8, 2025),

https://www.youtube.com/watch?v=w_hR

dFjnFZo .............................................................. 10

Valenton, Kathleen, Creatine and Women:

What the Science Actually Says, Lemme

(Mar. 19, 2026),

https://tinyurl.com/8fsmykun .............................. 7

IDENTITY AND INTEREST OF

AMICUS CURIAE 1

Pacific Legal Foundation (PLF), a nonprofit law

firm, has defended liberty since 1973—including

many appearances before this Court, both at the petition and merits stages. Across decades of litigation,

PLF has fought to preserve property rights, the right

to earn a living, the right to equal treatment under the

law, and the right to speak freely.

PLF has a particular interest in the proper application of the First Amendment to speech connected

with work, commerce, and the pursuit of a lawful occupation. PLF has filed amicus briefs and litigated

cases involving occupational licensing, commercial advertising, professional speech, and other forms of expression tied to economic life. These include First

Amendment challenges to laws restricting surf instruction, 2 wildlife safety training, 3 and telehealth

services. 4 In these cases, PLF has urged courts to reject labels that treat speech as constitutionally inferior simply because it relates to work or commerce.

1 Pursuant to Rule 37.2, counsel for all parties received notice

of intent to file this brief at least 10 days prior to the due date.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for

any party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

Amicus Curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

2 Wavehuggers, LLC v. Cal. Dep’t of Parks & Rec., No. 3:25-cv02215-RSH-BJW (S.D. Cal. 2025).

3 Molieri v. Bonham, No. 2:25-cv-02832-JAM-CSK (E.D. Cal.

2025).

4 MacDonald v. Sabando, No. 25-2090, _ F.4th _ (3d Cir. 2025).

2

PLF ’s long experience litigating commercial speech

cases will assist this Court’s review of this petition.

INTRODUCTION AND

SUMMARY OF ARGUMENT

New York law discriminates against speech based

on both viewpoint and content about matters of major

public concern that touch on science, politics, and human health. But because these speakers discuss such

matters to promote a product, the Second Circuit

Court of Appeals employed intermediate scrutiny and

upheld New York’s discriminatory speech law. See

Council for Responsible Nutrition v. James, 159 F.4th

155 (2d Cir. 2025).

When a nutrition supplement company advertises

products in New York, state law imposes a regulatory

disability: products marketed for weight loss or muscle gain cannot be sold to minors. N.Y. Gen. Bus. Law

§ 391-oo(1)(a). This law invokes the two major First

Amendment villains: viewpoint discrimination and

content discrimination. Yet the commercial speech

test crafted by this Court in Central Hudson Gas &

Electric v. Public Service Commission of New York,

447 U.S. 557 (1980), says New York’s law need not

survive the strict scrutiny typical for laws discriminating against viewpoint and content. See Chiles v.

Salazar, 146 S.Ct. 1010, 1024 (2026) (“And, under our

precedents, viewpoint restrictions like that are not

subject to mere rational-basis review or intermediate

scrutiny.”).

Consider an example. At this year’s Super Bowl,

nutrition company Hims & Hers aired a commercial

that used both political and scientific commentary to

promote its products. “Rich people live longer,” it be-

3

gins. 5 “The wealth gap is a health gap.” 6 It then markets its products as a way to close that gap: now you

can get the kind of healthcare restricted to the rich

through Hims & Hers products and services, including

weight-loss supplements. This advertisement, which

promotes its products through commentary on societal

and health issues of public concern, would trigger a

legal penalty under New York law. Meanwhile, the

many speakers warning about weight-loss supplements would face no penalty.

This case underscores the Central Hudson test’s inconsistency with this Court’s core First Amendment

doctrines. New York law imposes a regulatory disability on nutrition companies—a restricted market—

based solely on content (speech related to weight-loss

and muscle-gain products) and viewpoint (advocating

for the use of such products). Marketing for these supplements touches on contested matters of great public

concern.

In any other context, such speech would warrant

full First Amendment protection. But when this

speech comes clothed in the superficial trappings of an

advertisement, the Central Hudson test instructs

courts to dilute the First Amendment’s strength. As

Justice Thomas has noted, this artificial distinction

“makes no sense.” 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 528 (1996) (Thomas, J., concurring

in part). Other members of this Court have shared his

concerns. See Lorillard Co. v. Reilly, 533 U.S. 525, 554

(2001) (“[S]everal Members of the Court have expressed doubts about the Central Hudson analysis.”).

5 Hims & Hers, Rich People Live Longer (YouTube, Jan. 29,

2026), https://www.youtube.com/watch?v=aZ7Z5LTJWHM.

6 Ibid.

4

This Court should grant the petition to reconsider this

anomaly in First Amendment doctrine.

ARGUMENT

I.

The Commercial Speech Test Clashes With

Core First Amendment Principles

By subjecting commercial speech to intermediate

scrutiny, the Central Hudson test 7 contradicts the two

most fundamental First Amendment prohibitions:

viewpoint-based and content-based discrimination. In

most other settings, such discrimination faces strict

scrutiny. See Chiles, 146 S.Ct. at 1021 (“ ‘Viewpoint

discrimination,’ as we have put it, represents ‘an egregious form’ of content regulation, and governments in

this country must nearly always ‘abstain’ from it.”)

(quoting Rosenberger v. Rector and Visitors of Univ. of

Va., 515 U.S. 819, 829 (1995)); Reed v. Town of Gilbert,

576 U.S. 155, 163 (2015) (“Content-based laws—those

that target speech based on its communicative content—are presumptively unconstitutional and may be

justified only if the government proves that they are

narrowly tailored to serve compelling state interests.”). Not so with the commercial speech doctrine.

In fact, the doctrine embraces both by requiring courts

to apply different legal standards based on content

7 This test says that if commercial speech is not misleading and

does not relate to unlawful activity, then it is protected by a

three-part approach under intermediate scrutiny. Restrictions

on such speech must (1) be related to a substantial government

interest; (2) directly advance that interest; and (3) be more no

more extensive than necessary to serve that interest. See Central

Hudson, 447 U.S. at 566.

5

and viewpoint, and by allowing governments to engage in viewpoint and content discrimination against

commercial speakers.

Central Hudson folds viewpoint discrimination into

the test itself. Such discrimination takes place when

a law “favors” or “disfavors” one view over another.

Iancu v. Brunetti, 588 U.S. 388, 394 (2019). Speech

discouraging people from buying a product enjoys full

First Amendment protection, while speech encouraging people to buy the product does not. A one-star

Google review enjoys full protection, while an ad touting a company’s five stars on Google receives flaccid

speech protection.

The Central Hudson test itself also discriminates

directly by targeting “disfavored speakers.” Sorrell v.

IMS Health Inc., 564 U.S. 552, 565 (2011). If a commercial speaker promotes their product, they face intermediate scrutiny, yet if an unaffiliated party touts

the product, such speech would enjoy full First

Amendment protection. An example relevant here: in

a 60 Minutes interview in 2023, Dr. Caroline Apovian,

a professor at Harvard Medical School, made positive

remarks about the use of Ozempic and Wegovy for

weight loss. 8 If Novo Nordisk, the company that produces and sells these drugs, were to make the same

claims on this pressing issue of great significance for

millions of Americans, such speech would enjoy only

intermediate scrutiny. This Court has long looked

askance at regulators discriminating between speakers. See, e.g., Citizens United v. FEC, 558 U.S. 310,

340 (2010) (“Quite apart from the purpose or effect of

8 60 Minutes, Doctors explain how Wegovy and Ozempic work,

(YouTube, Jan. 1, 2023), https://www.youtube.com/watch?v=QO

5GHr7vZBU.

6

regulating content, moreover, the Government may

commit a constitutional wrong when by law it identifies certain preferred speakers.”). It should ensure

that its own doctrines do not commit the same constitutional error.

The Central Hudson test also embraces content discrimination, where a law “applies to particular speech

because of the topic discussed or the idea or message

expressed.” Reed, 576 U.S. at 163. Central Hudson

incorporates content discrimination because “the very

category of commercial speech is a content-based category.” Amanda Shanor, The New Lochner, 2016 Wis.

L. Rev. 133, 151 (2016). Courts, like any other government actor, should avoid weighing the relative importance of different topics or types of speech. 9 “What

the Constitution says is that these judgments are for

the individual to make, not for the Government to decree . . . .” United States v. Playboy Enter. Grp., Inc.,

529 U.S. 803, 818 (2000). Yet such judgments are precisely what Central Hudson requires. See Alan Howard, The Mode in the Middle: Recognizing a New Category of Speech Regulations for Modes of Expression,

14 UCLA Ent. L. Rev. 47, 88 (2007) (noting how courts

often “do precisely what the First Amendment forbids

any government official from doing: judging the social

worth of the speaker’s underlying message” in order

to exempt speech from “the general rule against content-based regulations”).

9 Of course, there are narrow categories of speech that enjoy

little to no First Amendment protection, but—unlike commercial

speech—these exceptions exist because the speech causes direct

material harm, is wholly lacking social value, and its exclusion

from protection has a foundation in history. See Chiles, 146 S.Ct.

at 1026-27.

7

This case demonstrates how Central Hudson bakes

viewpoint discrimination into the commercial speech

test. The Hims & Hers “rich people” advertisement

advocating weight-loss supplements would trigger a

regulatory penalty under New York law, yet University of Virginia researchers can publish their research

about potential long-term harms from weight-loss

supplements with no penalty. 10 Or, to take another

example, Lemme—a women’s wellness supplement

brand that launched this year—triggers a regulatory

penalty when it promotes its Lemme Creatine products for muscle building with a blog post making scientific claims that women get too little creatine. 11 By

contrast, the American Academy of Orthopaedic Surgeons faces no penalty for publishing warnings about

possible risks of creatine over-consumption. 12 Advertising is a key voice in the debate on these topics of

great interest to the public, yet the commercial speech

test allows states to hamstring certain voices competing in the marketplace of ideas. Outside the context

of commercial speech, this asymmetry would be condemned as viewpoint discrimination. Yet it is a core

premise undergirding the commercial speech test.

See Joshua Barney, GLP‑1 Drugs May Not Provide Key

Weight‑Loss Benefit, UVA Experts Caution, Univ. of Va. Sch. of

Educ. & Hum. Dev. (Apr. 8, 2024), https://tinyurl.com/yu3bk6zu.

11 Kathleen Valenton, Creatine and Women: What the Science

Actually Says, Lemme (Mar. 19, 2026), https://tinyurl.com/8fsm

ykun.

12 OrthoInfo, Creatine Supplements (last accessed May 1, 2026),

https://tinyurl.com/43hybyh9.

10

8

II. There Is No Sound Basis For Distinguishing

Between Commercial And Noncommercial

Speech

Even if advertising is somehow less deserving of

First Amendment protection than, say, protests at funerals, 13 pornography, 14 or flag-burning, 15 the commercial speech doctrine still fails to account for commercial speech’s entanglement with other forms of

fully protected speech. In theory, the commercial

speech doctrine’s reduced protections apply only to

“speech which does no more than propose a commercial transaction.” Bolger v. Youngs Drug Products

Corp., 463 U.S. 60, 66 (1983) (internal quotation

marks omitted). But advertising often incorporates

otherwise fully protected speech; it can be artistic, literary, political, satirical, musical, scientific, and otherwise take any form of expression that courts would

typically recognize as meriting full First Amendment

protection.

For instance, commercial speech often includes

“brand activism” that touches on political topics. To

take one example: in 2022, a new company called Jeremy’s Razors aired the “greatest commercial ever.” 16

The commercial—and indeed the company itself—was

the conservative website Daily Wire’s response to

Harry’s Razors pulling its ads from Daily Wire shows

due to “values misalignment.” 17 In the ad, Daily Wire

13 See Snyder v. Phelps, 562 U.S. 443 (2011).

14 See Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002).

15 See Texas v. Johnson, 491 U.S. 397 (1989).

16 The Daily Wire, Jeremy’s Razors: The Greatest Commercial

Ever (YouTube, Mar. 22, 2022), https://www.youtube.com/

watch?v=s92UMJNjPIA.

17 Ibid.

9

co-founder Jeremy Boreing slams the political views

of Harry’s Razors and Gillette, which had aired its

own commercial about “toxic masculinity” a few years

before. 18 Boreing, garbed as a king and lounging on a

throne, concludes: “Stop giving your money to woke

corporations who don’t think you deserve their product. Give it to me instead.” 19 This advertisement is

just as much a political and satirical statement as a

commercial one.

Other examples abound, including in the nutrition

industry. Hims & Hers, for instance, aired another

advertisement at the 2025 Super Bowl that promoted

its weight-loss products through a critique of the food

and healthcare industries. 20 The political commentary did not just run alongside promotion for the supplement—the political commentary was the promotion: the “system” that profits from the obesity epidemic keeps you “sick and stuck,” but Hims weightloss products liberate you from that parasitic system. 21 Such overtly political advertising would trigger

New York’s law here, yet the law need only survive

intermediate scrutiny, rather than the strict scrutiny

that would apply to other limits on political speech.

Hence, this Court’s warning in a similar context applies here as well: “The Free Speech Clause exists

principally to protect discourse on public matters, but

18 Ibid.; Guardian News, Gillette’s “We believe: the best men

can be” razors commercial takes on toxic masculinity (YouTube,

Jan. 14, 2019), https://www.youtube.com/watch?v=UYaY2Kb_P

KI.

19 The Daily Wire, supra note 16.

20 Hims & Hers, Sick of the System (YouTube, Feb. 9, 2025),

https://www.youtube.com/watch?v=l5l6QMNnqoc.

21 See ibid.

10

we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to

try.” Brown v. Ent. Merch. Ass’n, 564 U.S. 786, 790

(2011).

Beyond its entanglement with political matters,

commercial speech passes through the entire spectrum of speech that courts routinely shield with strict

scrutiny. Advertisements are often artistic. For instance, a small business in Salina, Kansas, recently

faced a sign code violation thanks to a giant burger

mural on the building featuring flying saucers shooting condiments. See Memorandum and Order, Cozy

Inn, Inc. v. City of Salina, No. 24-cv-01027-TC, 2025

WL 3223806 (D.C. Kan. 2025). Nutrition ads are no

different. Nutrition company Thorne has rolled out a

series of advertisements for its muscle-building creatine featuring popular performing artist Ciara. 22

Again, to analogize to this Court’s approach to a different medium: “Like the protected books, plays, and

movies that preceded them, video games communicate

ideas—and even social messages—through many familiar literary devices (such as characters, dialogue,

plot, and music) . . . .” Brown, 564 U.S. at 790.

The same is true of commercial speech. The popular television series Mad Men displays the massive

creative enterprise behind the commercial advertising

industry. In one famous scene, advertising executive

Don Draper reduces a board of male executives to

tears with his creative pitch for a commercial about a

slide projector. 23

Ironically, commentators have

22 Thorne,

Hero

film

(YouTube,

Sep.

8,

2025),

https://www.youtube.com/watch?v=w_hRdFjnFZo.

23 Mad Men, season 1, episode 13, “The Wheel” (AMC, Oct. 18,

2007).

11

called this scene—which displays quintessential commercial speech—one of the greatest moments in television history. 24 Commercial speech can involve as

much creative thought as any work to be found at the

National Portrait Gallery or the Sundance Film Festival. Such core expression “cannot be renamed away”

through “mere labels” like commercial or noncommercial. Chiles, 146 S.Ct. at 1023 (citation omitted). “The

First Amendment is no word game.” Ibid.

III. The Rationales For The Commercial Speech

Test Do Not Withstand Scrutiny

In the past, this Court has offered three primary

rationales for the second-class citizenship of commercial speech:

• Commercial

speakers

have

“extensive

knowledge” of “both the market and their products.” Central Hudson, 447 U.S. at 564 n.6.

• Commercial speech is “a hardy breed of expression” that can withstand overbroad regulation.

Ibid.

• Commercial speech is not the central concern of

the First Amendment. See Ohralik v. Ohio

State Bar Ass’n, 436 U.S. 447, 456 (1978).

None hold up to scrutiny.

A. Regulated party expertise

The Central Hudson Court saw commercial speech

as more amenable to regulation because commercial

speakers know their market. Central Hudson, 447

U.S. at 564 n.6. Thus, in theory, they will be more

24 David Carbonara, The Carousel from Mad Men’s Season 1

Finale (Sep. 1, 2023), https://tinyurl.com/3jeayxyc.

12

aware of what speech will be misleading or unlawful

and therefore less likely to face a chilling effect from

aggressive regulation. Ibid. Also, since they know

more, the law can expect a higher standard of transparency. Ibid. This rationale, however, does not justify reduced protections for commercial speech.

For one, this reasoning seems to only apply to

speech regulations designed to protect against misleading or false speech. 25 Yet the commercial speech

doctrine extends far beyond that narrow range. Many

cases apply the doctrine against laws designed to influence consumer choice by censoring certain information, which cannot be justified on the rationale that

businesses know their products. Indeed, the entire

point of such paternalistic laws is to reduce the pool of

commercial knowledge, not expand it or ensure its accuracy. See, e.g., Greater New Orleans Broad. Ass’n v.

United States, 527 U.S. 173 (1999) (applying commercial speech test to regulation prohibiting ads about

private casino gambling, including lawful gambling);

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (applying commercial speech test to law prohibiting beer

labels from displaying alcohol content); Bolger, 463

U.S. 60 (applying commercial speech test to law prohibiting mailing of unsolicited contraceptive ads).

Plus, the superior knowledge of commercial actors

is good reason to protect commercial speech, not expose it to greater regulatory control. After all, we

25 The commercial speech doctrine is not even necessary to deal

with fraudulent speech, which is already prohibited under the

separate test for false statements associated with “some other

legally cognizable harm.” United States v. Alvarez, 567 U.S. 709,

719 (2012).

13

want informed speakers to enjoy broad First Amendment protection. The commercial speech test hampers

knowledgeable speech while leaving less informed

speech to roam free. Thus, third parties like Consumer Reports or customer reviewers are more free to

discuss a product than the actual creator. This

skewed marketplace of ideas leaves consumers impoverished and ignores their “reciprocal right to receive

the advertising.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 757 (1976).

This case demonstrates why the expertise rationale

fails to justify the Central Hudson test. Nutrition

companies’ expertise does not reduce the chilling effect imposed by New York’s law. That chilling effect

exists because a special condition attaches to certain

speech about supplements—thus penalizing speech

promoting a certain viewpoint on a certain topic. It is

not a law with an ambiguous reach, where regulated

parties have a reduced chilling effect because their sophistication helps them navigate between lawful and

unlawful speech.

B. Hardiness of commercial speech

Central Hudson also claimed that courts should allow greater regulatory control over commercial speech

because it is “a hardy breed of expression” not prone

to being “crushed by overbroad regulation.” Central

Hudson, 447 U.S. at 564 n.6 (internal quotation mark

omitted). Commercial speech has this hardy character because it is “the offspring of economic self-interest.” Ibid. This rationale fares no better.

Plenty of fully protected speech arises from economic self-interest. George Lucas has become the

wealthiest director alive from his expressive activities, yet his economic self-interest does not exclude the

14

Star Wars films from full First Amendment protection. The same could be said of novels, commissioned

artwork, and the multibillion-dollar streaming industry, among many others.

Likewise, businesses are driven by their own economic interests when they engage in other fully protected speech, such as political lobbying. When Nvidia

lobbied to stop restrictions on its ability to sell AI

chips to adversary nations, 26 that speech was no less

driven by economic self-interest than its advertising

campaign for its advanced graphics cards. 27 Indeed,

the petitioner in this matter and its members engage

in lobbying to support bills like the Dietary Supplement Regulatory Uniformity Act, which would enshrine FDA preemptive authority to prevent a stateby-state patchwork regulatory environment. 28 They

have a strong economic self-interest in such lobbying,

yet that expressive activity enjoys full First Amendment protection—as it should—while member company advertisements must suffer greater regulatory

control. Why the latter is more “hardy” than the former is unknown.

Further, other motives may be just as hardy or

even hardier than a profit motive. When David

O’Brien burned draft cards on courthouse steps to protest the Vietnam War, he acted out of political conviction. United States v. O’Brien, 391 U.S. 367 (1968).

26 Oma Seddiq & Maggie Eastland, House Seeks Say Over AI

Chip Sales After Nvidia’s China Win, Bloomberg (Jan. 21, 2026),

https://tinyurl.com/2nr52fy4.

27 See GeForce, Nvidia, https://www.nvidia.com/en-us/geforce/

(last accessed May 1, 2026).

28 See Dietary Supplement Regulatory Uniformity Act, H.R.

7366, 119th Cong., § 2 (2026) (introduced).

15

When Gathie and Marie Barnette refused to salute

the American flag in school, they acted out of religious

conviction. West Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943). Courts have not addressed why

these convictions are less “hardy” than economic selfinterest. In fact, the reverse may be true. If William

Tyndale’s English translation of the Bible had been

motivated by economic self-interest, it is hard to believe he would have risked persecution and martyrdom when he could have simply found a less dangerous way to make a living. 29 Few people will risk their

necks for profit, but many do for principle.

C. First Amendment centrality

This Court has also justified reduced protection for

commercial speech because such speech occupies a

“subordinate position in the scale of First Amendment

values.” Ohralik, 436 U.S. at 456. This rationale does

not comport with this Court’s other holdings regarding speech categories.

Advocates of this speech hierarchy, with commercial speech low on the totem pole, tend to argue that

free speech rights exist to serve a political function—

namely to enrich the “process of self-government” and

protect “forms of participation necessary to sustain

democratic legitimacy.” Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L.

Rev. 1, 1, 56 (2000). In other words, speech rights are

for political speech. See Lillian BeVier, The First

Amendment and Political Speech, 30 Stanford L. Rev.

299, 343 (1978) (“The political speech principle only

protects participation in the processes of democratic

government.”).

29 See generally Brian Moynahan, God’s Bestseller (2003).

16

This argument, however, faces an uphill battle.

This Court exhibits “especial reluctance to mark off

new categories of speech for diminished constitutional

protection.” Chiles, 146 S.Ct. at 1027 (citation modified). To overcome that reluctance, the burden rests

on those who would dial down the First Amendment

to show “persuasive historical evidence” of a “long tradition” of permissible regulation of commercial

speech. Id. at 1026-27 (citation omitted). See also

Brown, 564 U.S. at 792 (requiring a “historical warrant” for subjecting certain types of speech to less protection).

Such a historical pedigree is dubious when it comes

to commercial speech. “Advertising has been a part of

our culture throughout our history,” 44 Liquormart,

517 U.S. at 495, and yet no strong pattern of regulation has accompanied it that would suggest a long tradition of distinguishing between commercial and noncommercial expression. 30 “Indeed, some historical

materials suggest to the contrary.” 44 Liquormart,

517 U.S. at 522 (Thomas, J., concurring in part). The

first commercial/noncommercial distinction made by

this Court in the perfunctory 1942 case of Valentine v.

Chrestensen, 316 U.S. 52, made no attempt to root its

reasoning in a historical analysis. Rather, historical

evidence of the time period indicates that Valentine

See Clay Calvert & Mary-Rose Papandrea, The End of

Balancing? Text, History & Tradition in First Amendment

Speech Cases After Bruen, 18 Duke J. Const. L. & Pub. Pol’y 59

(2023); Alex Kozinski & Stuart Banner, The Anti-History and

Pre-History of Commercial Speech, 71 Tex. L. Rev. 747, 756

(1993) (“We have no evidence that the Framers (or anyone else

until quite recently) conceptualized speech as divisible into the

categories of commercial and noncommercial, and it wasn’t until

1942 that the Supreme Court made the distinction explicit.”).

30

17

was simply a pragmatic compromise to grapple with a

rise in disputes over anti-littering laws as leafletting

began to proliferate in the 1930s. See Richard Hamm,

Off the Streets: The Origins of the Doctrine of Commercial Speech, 57 Am. J. Legal Hist. 495, 519 (2017).

Thus, it seems the distinction first arose in a jurisprudential era when this Court put far less emphasis on

historical understanding.

But even if the founders did not mean to protect

commercial speech, that intent does not override what

they actually wrote, which made no distinctions between types of speech. A law’s scope is dictated by its

text, not the animating concerns behind the legislation. See Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75, 79 (1998) (“[S]tatutory prohibitions often

go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our

laws rather than the principal concerns of our legislators by which we are governed.”). This is equally true

in how courts have interpreted the Bill of Rights. See

Slaughter-House Cases, 83 U.S. 36, 72 (1872) (“Undoubtedly while negro slavery alone was in the mind

of the Congress which proposed the thirteenth article,

it forbids any other kind of slavery, now or hereafter.”). This core canon of interpretation explains why

this Court has long extended full First Amendment

protection to other nonpolitical speech, such as novels,

films, and the visual arts. It should extend the same

to advertising.

18

CONCLUSION

This Court should revisit its commercial speech jurisprudence, and this petition demonstrates why. A

national debate is raging about our health—including

how best to address obesity, a matter of major public

concern and controversy. Nutrition companies wade

into this debate in many ways, including through

their advertising. New York’s law has hobbled one

perspective in this poignant national conversation, yet

federal court reliance on the Central Hudson test

gives it a pass. This Court has recently affirmed that

“faith in the free marketplace of ideas [i]s the best

means for discovering truth.” Chiles, 146 S.Ct. at

1029. When it comes to commercial speech, this Court

should restore that faith.

Respectfully submitted,

ETHAN W. BLEVINS

Counsel of Record

Pacific Legal Foundation

839 W 3600 S

Bountiful, Utah 84010

(916) 419-7111

EBlevins@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation

M AY 2026