The First Amendment to the United States Constitution provides that Congress shall make no law abridging (curtailing) the freedom of speech. Thus, free speech is only protected by the U.S. Constitution when it is the government that seeks to limit free speech. The First Amendment is inapplicable when a nongovernmental person or entity—such as a private business—seeks to limit free speech.

And some types of speech are afforded more protection than others. For example, commercial speech—speech that proposes a commercial transaction—is entitled to First Amendment protection, but less protection than political speech.

In the 1980 case Central Hudson Gas & Electric Corp. v. Public Service Commission, the U.S. Supreme Court developed a four-part test to determine whether commercial speech regulation violates the First Amendment:

1. Whether the commercial speech concerns a lawful activity and is not misleading;

2. Whether the government interest asserted to justify the regulation is "substantial";

3. Whether the regulation "directly advances" that government interest;

4. Whether the regulation is no more extensive than necessary to serve that interest.

In Delaware, as in all states, the First Amendment to the U.S. Constitution protects freedom of speech from government infringement. This protection does not extend to private entities, meaning that private businesses in Delaware are not bound by the First Amendment to uphold free speech rights in the same way the government is. However, Delaware businesses and individuals must still comply with applicable federal and state anti-discrimination laws that may impact speech. Regarding commercial speech, which includes advertising and other speech proposing a commercial transaction, it is protected under the First Amendment but to a lesser degree than political speech. The Central Hudson Gas & Electric Corp. v. Public Service Commission case established a four-part test to assess the constitutionality of commercial speech regulation. This test is used to evaluate whether Delaware's state regulations on commercial speech are in line with the First Amendment. An attorney can provide specific guidance on how this test is applied in Delaware and how it affects both individuals and businesses in the state.