Legal Definitions - Bolger test

The Bolger test is a legal framework used by courts to determine whether a particular statement or communication should be classified as "commercial speech." This distinction is important because commercial speech, while protected by the First Amendment, receives a lower level of constitutional protection compared to other forms of speech, such as political discourse or artistic expression. Essentially, the test helps courts decide if a message is primarily about proposing a commercial transaction.

The test involves examining three key factors:

• Is the communication an advertisement? This factor considers whether the message is presented in a format typically associated with promoting goods or services.
• Does the communication refer to a specific product or service? This looks at whether the message identifies and discusses a particular item or offering available for purchase.
• Does the speaker have an economic motivation for making the statement? This assesses whether the person or entity making the statement stands to gain financially from the promotion of the product or service.

If all three of these questions are answered affirmatively, it provides strong support for classifying the speech as commercial. However, the presence of all three factors is not always definitive; courts also apply a "common sense" approach to the overall context of the communication.

Here are some examples illustrating how the Bolger test might be applied:

• Example 1: A Local Restaurant's Social Media Post

  A local restaurant posts on its social media page: "Try our new 'Spicy Fiesta Burger' – made with premium Angus beef and jalapeño aioli! Available for a limited time for just $12.99. Visit us tonight!"

  • Is it an advertisement? Yes, the post is clearly designed to promote a specific menu item and encourage patronage.
  • Refers to a specific product or service? Yes, it specifically mentions the "Spicy Fiesta Burger" and its price.
  • Does the speaker have an economic motivation? Yes, the restaurant's goal is to attract customers and generate revenue from selling the burger.

  Conclusion: All three factors are strongly met, indicating this social media post would be considered commercial speech under the Bolger test.

• Example 2: A Tech Reviewer's YouTube Video

  A popular tech reviewer publishes a YouTube video titled "The Ultimate Gaming Laptop of 2024!" In the video, they extensively review a specific brand and model of laptop, highlighting its features and performance. The reviewer received the laptop for free from the manufacturer and also earns a commission from affiliate links to purchase the laptop included in the video description.

  • Is it an advertisement? While presented as a review, the receipt of a free product and the use of affiliate links suggest it functions as a promotional piece, especially given the title's strong endorsement.
  • Refers to a specific product or service? Yes, a particular brand and model of gaming laptop.
  • Does the speaker have an economic motivation? Yes, the reviewer benefits from the free product and earns a commission on sales made through their affiliate links.

  Conclusion: Despite being framed as a review, the presence of all three factors, particularly the clear economic motivation, would lead to this video being classified as commercial speech.

• Example 3: A Public Health Organization's Informational Brochure

  A non-profit public health organization distributes a brochure titled "Understanding Diabetes: Prevention and Management." The brochure provides general information about diabetes, healthy eating, and exercise. It also lists various types of medical devices, such as glucose meters, that can help manage the condition, but it does not endorse any specific brand or provide links to purchase them.

  • Is it an advertisement? No, the brochure's primary purpose is educational and informational, not to promote a specific product for sale.
  • Refers to a specific product or service? It refers to *types* of products (e.g., glucose meters) but not specific brands or models available for purchase.
  • Does the speaker have an economic motivation? No, the non-profit's motivation is public health education, not to profit from the sale of medical devices.

  Conclusion: Because the brochure is not an advertisement, does not refer to a specific product, and the organization lacks an economic motivation, this communication would likely *not* be considered commercial speech under the Bolger test. It would be protected as informational or advocacy speech.