ADPR 3100 1st Edition Lecture 22 Outline of Last Lecture I Identifying Audience Based on Gender Lifestyle Outline of Current Lecture II Continuation of last lecture III Competition Conflict Current Lecture Lecture 22 Kinds of speech and constitutional protection Commercial speech less protected than political speech o Commercial speech is hardier than political speech o Commercial speech can be more regulated because falsehoods are verifiable Easy to tell if an ad is lying New York Times v Sullivan o An ad of solicited funds some of the info was inaccurate o Paid advertisement o But advocated a point of view o Was this protected speech under the First Amendment o What happened was NYT deemed to be not liable deemed to have greater constitutional protection and thus no lawsuit Corporate speech Building on ambiguities seen in NYT v Sullivan o That it has aspects of commercial speech and also political speech so invent a third category corporate speech The paid publication of points of view of corporations o Not promoting commercial transaction but for advocating a particular point of view Corporate speech has the same protections as political speech Even though corporations have the same protections as the individuals corporations has a lot more ability to speak Imbalance due to unequal means These notes represent a detailed interpretation of the professor s lecture GradeBuddy is best used as a supplement to your own notes not as a substitute Not anything goes On one hand with the invention of corporate speech advertisers and their clients have a lot more leeway but at the same time there are still limits on what can be said Time place and manner rules o Court developed this while its constitutionally illegal to regulate the content of speech you can regulate when the speech is done where it can be heard and the manner in which the message comes out that is okay to do Central Hudson Four Part Test Read in textbook 4 questions a judge would ask o Ex say you have a chain of books and want to open a store so you have to advertise found perfect location for my biggest piece of out door ad across the street from high school Athens city council wont let it happen and pass regulation saying no ads at all within mile of school you take it to court judge would use this test I Is the message eligible for First Amendment protection billboard I want to put up as long as I am not advocating anything illegal or inducing violence it is eligible so here it would be eligible so answer is yes 2 Is the government interest asserted in regulating the expression substantial Does the council have a good reason for trying to stomp out my billboard YES want to protect the morals of the children 3 Does the proposed regulation advance the regulatory intersst Would it help protect the morals of the kids in the areas If answer is no throw off regulation but here it is yes if billboard isn t there morals would be protected 4 Is the proposed regulation narrow enough Will this regulation stomp out additional stuff In this case answer is no this regulation is not narrow enough it was just that there would be no ad of any kind within mile of school so stumps on my billboard as well as others such as for YMCA summer camps etc If yes to all the regulation on the speech is constitutional Advertising and the First Amendment Commercial speech advertising less protected o Legally subject to greater regulation Corporate speech o Third category that recently emerged o Has greater constitutional protection advertisers have more leeway in corporate speech than in commercial Still a right with legal limits o Cant say anything you want Legal regulations on advertising They aren t laws but are similar Elected appointed government o Have everything to do with elected and appointed officials o Local and county councils can pass regulation on advertising o State and national legislatures can pass regulation on advertising o Federal Trade Commission The story of where ad regulation came from o 1800s little regulation of advertisers many ads were outright lies no law against it Ex Lydia Pinkham s vegetable compound o Early 1900s Still a lot of problems with ads being lies Postmaster General could bar use of mails Which was the national post of postal system could ban the use of mails for any kind of flyers or magazines that were sent through mail with ads that lied still not that helpful because if ad wasn t using mail they couldn t do anything and the lying ad would already be out there o Toward regulation Advertising agencies started to get together and realize bad apple theory maybe a handful of the agencies in the country were routinely putting out ads that were lies members of public were increasingly believing that all ads were lies companies would recognize this and not advertise as much because they knew people though they were lying Industry sought regulation Went to the federal government and asked to be regulated reason why because they thought if they could get regulated it would be a stamp of approval and so people would have confidence in them because they re approved by government Define to its advantage Could craft regulations to their advantage so it was also for self interest o Pure Food and Drug Act 1906 Helped correct false messages and provide legal recourse for ads with false messages But did not fix or correct bad products So you could sell bad products you just couldn t advertise them o Federal Trade Commission 1914 FTC today is main federal body charged in part with regulating advertising Charge in part to protect consumers from deceptive and or unsubstantiated ads No evidence for the claims Remedies Can force companies to stop their ad campaign Can force companies to change their ad campaign Can force companies to publicize corrective ads Can force companies to pay fines Deception vs puffery Deception is actionable o It is lying Actionable meaning that if an ad lies the FTC will come after you o But deception has to be of a particular kind whatever lie is told in the ad it has to be a lie likely to mislead a normal person and this normal person must be a consumer acting reasonably and this lie must be material to the product claims shoe will make you run 200 mph this isn t a lie in terms of FTC because no one should believe it but if you said these shoes will give you 10 more energy this is in the realm of possibility and likely to mislead allergy medicine this medicine because of this ingredient is more