The Law of Advertising

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• The Law of Advertising
• (aka Commercial Speech)

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• 1. Gradually Increasing Constitutional
  Protection for Commercial Speech
• --Valentine v. Chrestensen (1942) held that
  advertising has second-class constitutional
  status
• --In 1970s, Sup. Ct. recognized consumers 1st
  Amend. right to receive commercial information
• --But ads still enjoy less 1st Amend. protection
  than political speech

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• 2. Current Test (Central Hudson) for Restricting
  Truthful Advertising of Legal Products, Services
• --Is a substantial gov't interest served by
  regulating the ad?
• --Does the regulation advance the gov't interest?
• --Is the restriction on advertising narrow?

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• 3. Regulating False, Deceptive Advertising
• --Should it be regulated?
• --Determining deception

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• 3. Regulating False, Deceptive
  Advertisingcontd
• --Deception can occur through words, omissions,
  production elements and endorsements

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• 4. Ad Agency and Publisher Liability
• --Agencies can be held partly responsible for
  deceptive ads they actively produced
• --Media rarely accountable for harmful
  consequences of ads except for obviously
  dangerous ones but see Soldier of Fortune cases

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• Both ads led to contract murders. Is the
  publisher partly responsible?
• Soldier of Fortune I
• "Ex-Marine--67-69 Nam Vets--ex D.I.--weapons
  specialist--jungle warfare, pilot, M.E. high risk
  assignments U.S. or overseas."
• Soldier of Fortune II
• "Gun for Hire 37-year-old mercenary desires
  jobs. Vietnam Veteran. Discreet and very
  private. Bodyguard, courier, and other special
  skills. All jobs considered."

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• Soldier of Fortune case outcome
• Court of Appeals ruling liability for
  publishing an ad that "on its face, and without
  the need for investigation, makes it apparent
  that there is a substantial danger of harm to the
  public.
• 4.2 million in damages!

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• 5. Media Have a Nearly Unlimited Right to Refuse
  Ads
• 6. Policing Advertising
• --Industry self-regulation
• --Lawsuits by competitors
• --Federal Trade Commission uses a range of
  remedies from proactive measures to corrective
  advertising
• --Uneven enforcement at state, local level

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