Eddie Wesley Moore v. City Gulf Shores

On Application for Rehearing PATTERSON, JUDGE Appellee, City of Gulf Shores, applies for rehearing in this case, claiming
that we failed to adequately focus our review on the nature of the activity sought to be prohibited and inappropriately applied
the constitutional doctrine of overbreadth to a form of commercial speech not protected by the constitution. We have considered
the application for rehearing, along with the appellee's brief in support thereof, as well as the appellants' brief, and we
find no merit to the appellee's contention; we adhere to the Conclusion reached in our original opinion. We do not agree with appellee's contention that the activity sought to be prohibited here is commercial speech. Commercial
speech is defined as speech of any form that advertises a product or service for profit or for business purposes. Black's
Law Dictionary 245 (rev. 5th ed. 1979); 3 R. Rotunda, J. Nowak, J. Young, Treatise on Constitutional Law: Substance and Procedure
§ 20.26 (1986). Clearly, the appellants' activity was not concerned with advertising a product or service in the
instant case. Because we have concluded that commercial speech is not involved in this case, it is not necessary to address
the question of whether the constitutional doctrine of overbreadth applies to commercial speech; however, even though we do
not address this question, we wish to make it clear that we do not necessarily agree that the doctrine never applies in commercial
speech cases. 3 R. Rotunda, J. Nowak, J. Young, supra, §§ 20.26-20.31. "The right to engage in a chosen
business, occupation, or profession without unreasonable governmental interference or deprivation thereof is a liberty and
property right which is protected by the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution,
as well as by similar provisions in state constitutions." 16D C.J.S. Constitutional Law § 1319 (1985).