The advertised publications, as we have emphasized, are not commercial speech because they do not propose a commercial transaction between CTS and a specific customer.
See, e.g., Board of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 473, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). They seem instead more closely analogous to a restaurant or performance review, or a
Consumer Reports article, in the context of the commodity markets. CTS's publications appear to provide impersonal evaluations and recommendations regarding available trading options. Just like a restaurant review does not propose a transaction between the individual reader and the restaurant, the publications themselves do not propose any commodity transaction. Courts have held that such impersonal information is not commercial speech.
See, e.g., Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (affording full First Amendment protection to a
Consumer Reports evaluation of a loudspeaker);
Security & Exch. Comm'n v. Wall St. Publ'g Inst., Inc., 851 F.2d 365, 372 (D.C.Cir.1988) (holding that there is no “clear fit between the commercial speech doctrine and the publications that the SEC here seeks to regulate” where the challenged publications printed stories of “general financial interest” and profiles of specific investment prospects),
cert. denied, 489 U.S. 1066, 109 S.Ct. 1342, 103 L.Ed.2d 811 (1989);
Gordon & Breach Science Pubs. S.A., STBS, Ltd. v. American Inst. of Physics, 859 F.Supp. 1521, 1544 (S.D.N.Y.1994) (stating that a restaurant review or
Consumer Reports product report would not be commercial speech);
In re Scott Paper Co. Sec. Litig., 145 F.R.D. 366, 369 (E.D.Pa.1992) (allowing Standard & Poor's to assert journalist's privilege relating to creditworthiness report and stating that “[w]e see no reason why disseminators of corporate financial information should not have as strong a claim to First Amendment protection as do disseminators of other kinds of information”). Indeed, the Supreme Court has commented specifically that the First Amendment affords full protection to impersonal investment advice.
See Lowe v. Securities & Exch. Comm'n, 472 U.S. 181, 210, 105 S.Ct. 2557, 86 L.Ed.2d 130 (1985) (“To the extent that the chart service contains factual information about past transactions and market trends, and the newsletters contain commentary on general market conditions, there can be no doubt about the protected character of the communications ....”);
see also id. at 210 n. 58, 105 S.Ct. 2557 (“Moreover, because we have squarely held that the expression of opinion about a commercial product such as a loudspeaker is protected by the First Amendment [citing
Bose], it is difficult to see why the expression of an opinion about a marketable security should not also be protected.”). Our independent review of the record, in conjunction with the foregoing legal authority, convinces us that we must reverse the district court's current determination that CTS's publications constitute commercial speech.