The threshold inquiry under
Central Hudson
is whether the commercial speech at issue
concerns lawful activity and is not misleading.
81
Although the proposed Internet and Web
Services exception is ostensibly designed to suppress fraudulent telemarketing, it burdens all
telemarketing speech concerning these services, and would subject legitimate Web and Internet
services to many restrictions under the TSR that are unrelated to fraud. [W]here . . . truthful
and non misleading expression will be snared along with fraudulent or deceptive speech, the
[government] must satisfy the remainder of the [three prongs of the]
Central Hudson
test . . . .
82
Therefore, the FTC's proposed restriction on business to business solicitations involving Web
and Internet services will be sustained only if they withstand scrutiny under all three of the
Central Hudson
factors.
Even assuming that the FTC could successfully assert an important interest in protecting
businesses from telemarketing fraud, the selective regulation chosen as the means of advancing
this interest fails the second and third prongs of the
Central Hudson
test. To pass the second
prong of this test, a regulation must directly and materially advanc[e] the asserted governmental
interest.
83
This burden is not satisfied by mere speculation or conjecture; rather, a
governmental body must demonstrate that the harms it recites are real and that its restrictions
will, in fact, alleviate them to a material degree.
84
The regulation cannot be saved if it provides
only ineffectual or remote support for the government's purpose or if there is little chance
that the restriction will advance the state's goal.
85
81
See id.
82
Edenfield v. Fane
, 507 U.S. 761 (1993) (holding that blanket ban on all solicitations by CPAs was
unconstitutional).
83
Id.
84
Greater New Orleans
, 527 U.S. at 188, citing
Edenfield,
507 U.S. at 770 71 (1993).
85
Lorillard
, 121 S. Ct. at 2404 (citations omitted).
27