Commercial speech is a relatively new member of the family of First Amendment protected speech. The United States Supreme Court first adopted the commercial speech doctrine in 1976 and ever since has had difficulty defining it. In its purest and most simple form, commercial speech is speech proposing a commercial transaction. Unlike content-based regulations, the majority of which must pass strict First Amendment scrutiny, regulations of commercial speech must pass only intermediate scrutiny under the First Amendment. The reason for this inferior level of protection is that commercial speech is low-value speech, meaning the importance of regulating it outweighs any benefit the speech may have to society.

Three years ago, Thomas Branco and his mother were driving home when a faulty transmission caused their car to stall. As Mr. Branco pushed the stalled car off the road, an out-of-control drunk driver collided into the car, crushing Mr. Branco into the trunk. He sustained severe injuries, but amazingly was still alert while en route to the hospital in an ambulance. Upon arrival, he informed the doctor that he would not agree to a blood transfusion because of his religious beliefs. A short time later, after surgery to amputate both of his legs, Mr. Branco died. A Florida trial court convicted the drunk driver of driving under the influence (DUI) manslaughter. On appeal, the defendant argued that Mr. Branco’s refusal of a blood transfusion was an intervening cause of death. The appellate court rejected this argument, reasoning that the defendant “caused life-threatening injuries” and the refusal of a blood transfusion did not “absolve [the defendant] from criminal liability.”