-Commercialization speech has evolved due to decades of supreme court decisions
-The Courts ruling in the Central Hudson case established that "government may constitutionally regulate non-deceptive advertising only with regulations that use the least speech-restrictive means to directly advance a substantial government interest".
- False/deceptive ads and ads for illegal products can be banned under the FTCA and the Lanham Act
- When cases involve alcohol and tobacco, the SC does not allow absolute bans on advertising for legal products/services, but does allow strict ad regulations when it comes to minors
-Many supreme court rulings have demonstrated the difference between political speech of corporations and commercial speech.
-The FTC doesn't allow spam, and requires truthful labeling of unsolicited texts and emails in bulk.
Key Terms:
Puffery- advertising that exaggerates the merits of products or services in such a way that no reasonable person would take the claim seriously, from deception
Litigated order- A FTC order filled in admin court and enforceable by the courts whose violation can result in penalties, including fines of up to $10,000 per day.
Important Cases:
Central Hudson Gas & Electric Corp v Public Service Commission of New York
The case that enacted the four-part test (Central Hudson test, see below), which determines when and which restrictions on commercial speech violated the FA.
Sorrell v IMS Health Inc.
A case that proved that several doctors and their prescription practices violated the FA, due to the restriction of the sale and use of medical records
Relevant Doctrine:
Central Hudson Test (After Sorrell)
After Sorrell, courts asked to rule on the constitutionality of a regulation on commercial speech must determine:
1. Is the commercial speech false or related to an illegal activity?
a. If yes, the speech may be banned or strictly regulated
b. If no, proceed with the test
2. Is the regulation of commercial speech based on its content?
a. If yes, the court must apply strict scrutiny and presume the rule unconstitutional
After Sorrell, courts asked to rule on the constitutionality of a regulation on commercial speech must determine:
1. Is the commercial speech false or related to an illegal activity?
a. If yes, the speech may be banned or strictly regulated
b. If no, proceed with the test
2. Is the regulation of commercial speech based on its content?
a. If yes, the court must apply strict scrutiny and presume the rule unconstitutional
b. If no, proceed with the test
3. Is the regulation of commercial speech content neutral?
a. If yes, the court must apply the Central Hudson test and strike down the regulation unless the answer to all of the following is yes
i. does the rule relate to a significant government interest?
ii. Does the rule directly advance that government interest?
iii. Is the regulation unrelated to the suppression of speech?
iv. Does the regulation "fit" the government interest without unduly infringing on speech?
3. Is the regulation of commercial speech content neutral?
a. If yes, the court must apply the Central Hudson test and strike down the regulation unless the answer to all of the following is yes
i. does the rule relate to a significant government interest?
ii. Does the rule directly advance that government interest?
iii. Is the regulation unrelated to the suppression of speech?
iv. Does the regulation "fit" the government interest without unduly infringing on speech?
Reading this chapter reminds me of the false and deceptive advertising that we see in politics. The book discusses the false advertising in the 2016 election, and how 70% of the most aired ads were attack ads. I consider our current election, and how many candidates spent millions on campaigns that were likely not even representative of the candidate, but were just overly funded. Spending millions on campaigning rather than actual change seems like deceptive ads to me, but maybe i am just looking at things from an ethical standpoint rather than a legal one. Regardless, deceptive political ads will significantly impact voters in some mannor, and I find that really dangerous considering the political state we are in.
Questions:
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