The Arkansas state legislature enacts a statute that prohibits the advertising of video games "because the games might be harmful to minors." Despite this new statute, the president of Games Marketing, Inc (GMI), orders GMI marketers to place ads in any
media. When a GMI ad appears on HDTV, a local television station, GMI and HDTV are charged with violating the statute. What is the defendants' best defense against a conviction?
GMI and HDTV cannot be convicted because a state legislature cannot enact a statute that restricts commercial speech (in this problem, marketing video games) to this extent. The First Amendment protects commercial speech.
Commercial speech is not protected as much as noncommercial speech, however, so states can place some restraints on the former. For example, to protect consumers, a state may ban certain kinds of marketing practices, such as deceptive or misleading advertising. Generally, a restriction on commercial speech will be considered valid as long as it (1 ) seeks to implement a substantial government interest, (2 ) directly advances that interest, and (3 ) goes no further than necessary to accomplish the objective. Here, the complete ban on video ads "because the games might be harmful to minors" is too restrictive: it goes too far in attempting to protect minors for an apparently unsubstantiated purpose.
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