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Advertising and Commercial Expression

Advertising and Commercial Expression. JOUR3060 Communication Law & Regulation. Advertising and Commercial Expression. Traditional View: advertisements are NOT protected speech Current View: truth in advertising, advertisements are protected under 1 st Amendment but can be restricted.

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Advertising and Commercial Expression

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  1. Advertising and Commercial Expression JOUR3060 Communication Law & Regulation

  2. Advertising and Commercial Expression • Traditional View: advertisements are NOT protected speech • Current View: truth in advertising, advertisements are protected under 1st Amendment but can be restricted

  3. ADVERTISEMENTS AND COMMERCIAL EXPRESSION: TRADITIONALLY • Valentine v. Chrestensen (1942): Commercial speech not protected under 1st Amendment • Breard v. City of Alexandria (1951):door-to-door solicitations • *religious solicitations protected under 1st Amendment • FTC v. Colgate-Palmolive (1965)truth in advertising

  4. FTC v. Colgate-Palmolive (1965)

  5. ADVERTISEMENTS AND COMMERCIAL EXPRESSIONS “Public Interest” Test: - Is the information truthful and not misleading? • Does the advertisement concern a legal/lawful activity? - Advertising defined: that which materially affects a corporation’s business, property, assets - Issue: Who is speaking and what speech is protected? Speech of artificial persons protected

  6. ESTABLISHING FIRST AMENDMENT PROTECTION FOR ADVERTISEMENTS • New York Times v. Sullivan (1964) • Bigelow v. Commonwealth of Virginia (1975) establish 1st Amend protection for ads • Virginia Board of Pharmacy v. Virginia Citizens Consumer Council (1976) first application of 1st Amendment protection of commercial expression • First National Bank of Boston v. Bellotti (1978) Corporations’ campaign contributions = protected speech

  7. CAN PROTECTED COMMERCIAL EXPRESSION BE RESTRICTED?? • Central Hudson Gas & Electric Corp v. Public Service Commission (1980) • Central Hudson Test: determine whether ad restriction is permissible; Is the advertising expression protected by the 1st Amendment? • 1) is the ad lawful and not misleading? • 2) is the asserted government interest in the regulation substantial? • police power in public health, safety, welfare • 3) does the regulation directly advance that government interest? • 4) is the regulation not more extensive than necessary? • not least restrictive means

  8. CAN PROTECTED COMMERCIAL EXPRESSION BE RESTRICTED?? • Gambling, Direct Mail, Alcohol, Cigarettes • Condado Holiday Inn v. Tourism Company of Puerto Rico (1986) gambling • Greater New Orleans Broadcasting v. US (1999) gambling • Florida Bar v. Went-For-It Inc (1995)direct mail • 44 Liquormart v. Rhode Island (1996)alcohol; more protection under Central Hudson • Lorillard Tobacco Co. v. Reilly (2001) cigarettes

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