Primer II establishes that by the late 1970s, the Supreme Court had established firmly that government may not ban hateful speech merely because it and the speaker (a Klan member in one case, Nazis in the other) are loathsome.
Put another way, the government may not ban "speech" simply based on (a) the content of the speech, or (b) the speaker's identity. This a core First Amendment principle.
Now we come to another particularly interesting First Amendment venue -- commercial advertising (e.g., a cigarette ad). To grasp the Citizens United case comprehensively, it's necessary to grasp the basic First Amendment law as to commercial advertising.
The Supreme Court cases on commercial advertising have a clearly defined starting point (1942) and a clearly defined end point (2001). That is far from the whole story.
New York City, circa 1940. Mr. Chrestensen wants to distribute handbills to advertise tours of a WW I submarine he has acquired. The city says he can't do so, because of an anti-littering ordinance aimed squarely at commercial advertising via handbill.
Chrestensen returns to his printing press and cranks out two-sided handbills. On one side is a tour ad. On the other is a protest against the city's refusal to let him distribute his handbills. He argues the handbills are devoted to information and public protest. Ha, ha, ha.
Police commissioner Valentine and Christensen wind up before the Supreme Court, which holds commercial advertising is not "speech" for First Amendment purposes. Decision for the police commish. Valentine v. Chrestensen (1942).
Valentine was overturned 31 years later by Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973).
This is a very important case, because it elevates commercial advertising from unprotected "non speech" to substantially protected "quasi speech."
BTW, the Court in Pittsburgh Press Co. UPHELD a narrowly crafted ban on hiring ads that specified a male or female preference.
Fast forward to 2001. The case: Lorillard Tobacco Co. v. Reilly (Supreme Court 2001).
The question before the Court: Whether Massachusetts could ban tobacco ads on the grounds of deterring underage smoking.
Held, that the Massachusetts ban is OK only if the state can show the ban advances the state's goal without being overly broad (the Court found overbreadth). Note carefully who has the burden of proof here: the state.
Here's the basic Supreme Court attitude toward censorship: it's repugnant, but sometimes it's justified, and the burden of proof is always on the censor. Put another way, in case of a tie between censorship and non-censorship, non-censorship always wins.
In summary, commercial advertising, while not full-blown "speech" for First Amendment purposes, does receive substantial First Amendment protections.
The final march toward Lorillard began with Central Hudson Gas & Electric Corp v. Public Service Commission (1980), where the Court held that commercial advertising can be regulated only if --
(1) the advertising is misleading or promotes an illegal activity; OR
(2) the government interest in regulation is substantial,
(3) the regulation directly advances the government's interest, and
(4) the regulation is not more extensive than necessary.
Hold this idea: In Lorillard and Central Hudson, the winning party was a business corporation, awarded substantial First Amendment protection for non-political commercial speech. One may not like this idea. And of course, one may not like how the Supreme Court has dealt with commercial advertising. Who knows, maybe some future Court will overturn Lorillard.
In the next diary, I'll tackle individual political speech. After that, we'll get to the biggie -- corporate political speech.