Lecture 22Kinds of speech and constitutional protectionCommercial speech less protected than political speechCommercial speech is hardier than political speechCommercial speech can be more regulated because falsehoods are verifiableEasy to tell if an ad is lyingNew York Times v. SullivanAn ad of solicited funds, some of the info was inaccuratePaid advertisementBut advocated a point of viewWas this protected speech under the First Amendment?What happened was NYT deemed to be not liable, deemed to have greater constitutional protection and thus no lawsuitCorporate speechBuilding on ambiguities seen in NYT v. SullivanThat it has aspects of commercial speech and also political speech…so invent a third category  corporate speechThe paid publication of points of view of corporationsNot promoting commercial transaction but for advocating a particular point of viewCorporate speech has the same protections as political speechEven though corporations have the same protections as the individuals corporations has a lot more ability to speakImbalance due to unequal meansNot “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 saidTime, place, and manner rulesCourt 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 doCentral-Hudson-Four-Part-Test**Read in textbook**4 questions a judge would askEx: 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 yes2. 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 children3. 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 constitutionalAdvertising and the First AmendmentCommercial speech (advertising) less protectedLegally subject to greater regulationCorporate speechThird category that recently emergedHas greater constitutional protection, advertisers have more leeway in corporate speech than in commercialStill, a right with legal limitsCant say anything you wantLegal regulations on advertisingThey aren’t laws but are similarElected/appointed governmentHave everything to do with elected and appointed officialsLocal and county councils can pass regulation on advertisingState and national legislatures can pass regulation on advertisingFederal Trade CommissionThe story of where ad regulation came from1800s: little regulation of advertisersmany ads were outright lies, no law against itEx) Lydia Pinkham’s vegetable compoundEarly 1900sStill a lot of problems with ads being liesPostmaster General could bar use of mailsWhich 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 thereToward regulationAdvertising 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 lyingIndustry sought regulationWent 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 governmentDefine to its advantageCould craft regulations to their advantage, so it was also for self interestPure Food and Drug Act 1906Helped correct false messages and provide legal recourse for ads with false messagesBut did not fix or correct bad productsSo you could sell bad products you just couldn’t advertise themFederal Trade Commission 1914FTC today is main federal body charged in part with regulating advertisingCharge in part to protect consumers from deceptive and or unsubstantiated adsNo evidence for the claimsRemedies:Can force companies to stop their ad campaignCan force companies to change their ad campaignCan force companies to publicize corrective adsCan force companies to pay finesDeception vs. pufferyDeception is actionableIt is lying. Actionable meaning that if an ad lies the FTC will come after youBut 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 misleadallergy medicine “this medicine because of this ingredient is more effective than any other medicine”—a normal person doesn’t have the knowledge to know about that ingredientmaterial—it must have something central to do with the claim that is made, ad for soft drink showing big class with ice cubes and the drink looks frothy, turns out those ice cubes are plastic and photographer did this because it looked better,