Constitutional Protections and Commercial Speech

Businesses engage in commercial speech both for financial purposes, by advertising their product or service, and for political purposes, by promoting their view on a candidate or issue that affects them. Over the last several decades, federal courts have carved the contours of the First Amendment's application to commercial speech. Fundamentally, businesses have only partial First Amendment protection for advertising and full First Amendment protection for what can be deemed as political commercial speech.

Several enterprising business students formed Beer Pong Industries (BPI) after graduating from college. BPI distributed equipment, specialized cups, and other paraphernalia typically used in college drinking games including beer pong. BPI began to advertise in markets that catered to college students, including billboard advertising on the public highway that leads to Local University (Local U). The billboard depicted a group of college-age men and women laughing and knuckle bumping while engaged in a game of beer pong. Under the picture was the caption "Play Pong. Stay Happy." Under pressure from local residents, the city council where Local U is located passed an ordinance banning "any billboard that promotes or depicts underage or irresponsible drinking."

3.Assume that BPI decided to remove the advertisement from the billboard and replace it with a poster attacking the city council members as unfit for office. How does this change your First Amendment analysis?