First Amendment Protection for Commercial Speech: A Historical Analysis - Prof. Eugene Sen, Study notes of Communication

Download First Amendment Protection for Commercial Speech: A Historical Analysis - Prof. Eugene Sen and more Study notes Communication in PDF only on Docsity! Commercial Speech Know the definitions and rules. Be able to correctly recognize and apply them in hypothetical situations.  What are the three reasons commercial speech is granted less First Amendment protection than political speech?  What are the differences between the way political and commercial speech are treated?  Which commercial speech receives no First Amendment protection?  Know the legal rules from each of the following cases. Explain how and why the level of First Amendment protection for commercial speech has changed in the cases. o Valentine v. Chrestensen (1942) o Times v. Sullivan (1964) o Virginia State Board of Pharmacy v. Virginia Citizens Council (1976) o Central Hudson Gas & Electric Co. v. Public Service Commission of New York (1980) o SUNY v. Fox (1989) o Posadas de Puerto Rico v. Puerto Rican Tourism Co. (1986) o Rubin v. Coors (1995) o 44 Liquormart, Inc. v. Rhode Island (1996) o Greater New Orleans Broadcasting Association v. United States (1999) o Thompson v. Western Medical  Nike v. Kasky:When does a corporation's public relations campaign on a social issue become commercial speech that can be punished as deceptive advertising? o What were the facts of the case? o What is the issue in the case? o What three factors did the court examine? What was the court's reasoning? o Would the majority's decision and reasoning chill political and social speech by businesses? o Do labor practices of companies matter to consumers? Did Nike think consumers care? o What was the outcome of the case?  How has the U.S. Supreme Court defined commercial expression? Return to Media Law Home Page MEDIA LAW FINAL EXAM – COMMERCIAL SPEECH (cortney’s)  What are the three reasons commercial speech is granted less First Amendment protection than political speech? o Commercial speech is easier to verify by its disseminator than news reporting or political commentary b/c the advertiser disseminates information “about a specific product/service that he himself provides and presumably knows more about than anyone else. o Commercial speech is “more durable” than noncommercial speech b/c commercial speakers act from a profit motive and are less likely to experience a chilling effect from speech regulation. o Governmental authority to regulate commercial transactions to prevent commercial harms justifies a power to regulate speech that is ‘linked inextricably’ to those transactions.  What are the differences between the way political and commercial speech are treated? o Political speech receives heightened FA protection while commercial speech that is false, misleading or deceptive falls outside the scope of FA’s safeguards for expression.  Which commercial speech receives no First Amendment protection? o False, misleading or deceptive that promotes an illegal goods or services. about its labor practices and about working conditions in factories that make its products.  Nike made statements in:  Press releases  Letters to newspapers  Letter to university presidents and athletic directors  Other documents distributed for PR purposes  Full-page advertisements in leading newspapers  Two California lower courts found in favor of Nike. o What is the issue in the case?  Whether Nike's false statements are commercial or political, noncommercial speech. o What three factors did the court examine? What was the court's reasoning?  Speaker : (Commercial) Nike manufactures, imports, distributes and sells consumer goods in the form of athletic shoes and apparel.  Content : (representations of fact of a commercial nature):  Nike made factual representations about its own business operations.  Described its labor policies, and the practices and working conditions in factories where its products are made.  Addressed matters within its knowledge.  Court used a broad definition of product references.  Nike could readily verify the truth of its factual assertions.  Intended audience : (Commercial) 1- University athletic departments are major purchasers of athletic shoes and apparel. 2 - Consumers in the general public. o Would the majority's decision and reasoning chill political and social speech by businesses?  It shouldn’t…  Points of view on general policy such as the value of economic “globalization” is noncommercial speech subject to full FA protection. But speech concerning facts material to commercial transactions has less protection.  The majority’s decision…  “…in no way prohibits any business enterprise from speaking out on issues of public importance or from vigorously defending its own labor practices. It means only that when a business enterprise, to promote and defend its sales and profits, makes factual representations about its own products or its own operations, it must speak truthfully. “  "We do not consider this a remarkable or intolerable burden to impose on the business community."  o Do labor practices of companies matter to consumers? Did Nike think consumers care?  Yes. Yes. o What was the outcome of the case?  CA SC: Speech was commercial.  Messages were directed by a commercial speaker to a commercial audience.  Nike stated facts about its business operations for the purpose of promoting sales of its products.  How has the U.S. Supreme Court defined commercial expression? o “Speech that does no more than propose a commercial transaction” o “Expression solely related to the economic interests of the speaker and its audience” Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, (1973): The U.S. Supreme Court suggested it might give constitutional protection to "an ordinary commercial proposal." However, the Court upheld a city ordinance barring sex-specific help wanted ads. Bigelow v. Virginia, (1975): The U.S. Supreme Court said the First Amendment protects an ad containing factual material of clear public interest and promoting a legal activity. States have greater powers to regulate speech in commercial advertisements than any other form. Commercial Speech Doctrine o Gov’t may regulate advertising that is false/misleading, and advertising for unlawful goods and services. Commercial Speech (Leslies) Know the definitions and rules. Be able to correctly recognize and apply them in hypothetical situations.  What are the three reasons commercial speech is granted less First Amendment protection than political speech? 1. There is substantial state interest to justify the regulation. 2. There is evidence that the regulation directly advances this interest. 3. There is a reasonable fit between the state interest and the government regulation.  What are the differences between the way political and commercial speech are treated? o Political speech enjoys a broad range of protection under the First Amendment. The constitutional protection for advertising is limited.  Which commercial speech receives no First Amendment protection? 1. Advertising that is false, misleading or deceptive. 2. Advertising for unlawful goods and services.  Know the legal rules from each of the following cases. Explain how and why the level of First Amendment protection for commercial speech has changed in the cases. o Valentine v. Chrestensen (1942)  U.S. Supreme Court said advertising received NO First Amendment protection.  Owner of a submarine tourist attraction in New York was prohibited from distributing advertising handbills on street. He could distribute only handbills "devoted solely to "information or a public protest." So he revised leaflet to remove admission fee and other side protested city dock refusal to let sub dock.  U.S. Supreme Court believed his claim for First Amendment protection was merely a ploy to avoid a lawful regulation of New York City. o Times v. Sullivan (1964)  The U.S. Supreme Court said a paid political ad (editorial advertisement) did receive protection under the First Amendment. o Virginia State Board of Pharmacy v. Virginia Citizens Council (1976)  The U.S. Court recognized that purely commercial speech receives First Amendment protection. However, the government may regulate ads that are false, misleading, or promote illegal products or services. The Court overturned its decision in Valentine and gave qualified protection to commercial speech.  The Pharmacy Board contended competition would cause pharmacists to act less professionally. They shouldn't be spending