Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Chapter Overview
Chapter 12: Advertising
Chapter 12 addresses the law that governs the intersection of commerce and speech: advertising.
This area addresses the financial lifeblood of the media and the field of primary interest for
students of marketing, advertising, and, to some degree, corporate public relations. The topic
tends to resonate with students, perhaps because they attend closely – and too often uncritically
– to today’s slickly packaged sales techniques or because its cases and situations deal with
products with which they often are familiar.
As with other areas of journalism and mass communication law, advertising is regulated
through the courts, legislation, and agencies. This three-pronged dynamic, however, is
especially prominent in this area. Chapter 12 is structured largely according to these categories.
The Court’s decisions in the past nearly 50 years have crafted an unclear definition of
commercial speech or advertising. Initially, the Court exempted purely commercial speech from
First Amendment protection and said such commercial speech did no more than propose and
facilitate commercial transactions. Since the 1970s, the Court has said that truthful commercial
speech is protected to some degree. False and deceptive advertising, and advertising that does
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
“no more” than propose a commercial transaction may be regulated. However, in Virginia State
Board of Pharmacy v. Virginia Citizens Consumer Council, the Supreme Court recognized that
advertising may contain information that approaches the importance of political speech; it may
provide information that is of the highest importance to some people.
In the past two decades, the Court’s decisions in 44 Liquormart and Sorrell have essentially
rewritten (or overturned?) the Central Hudson test. Although lower courts have been slow to
apply the new standard, the Supreme Court has made clear that today courts must use a multi–
step test to determine the constitutionality of regulation of advertising. Courts must decide:
1. Is the commercial speech false or related to an illegal activity?
a. If yes, the speech may be banned or strictly regulated.
b. If no, proceed with the test.
2. Is the regulation of commercial speech based on its content?
a. If yes, the court must apply heightened, or strict, scrutiny and presume that the
rule is unconstitutional. If not, proceed with the test.
3. Is the regulation of commercial speech content neutral?
a. If yes, the court must apply the Central Hudson test and strike down the
regulation unless the answer to all of the following is yes.
i. Does the rule relate to a significant government interest?
ii. Does the rule directly advance that government interest?
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
iii. Is the regulation unrelated to the suppression of speech?
iv. Does the regulation “fit” the government interest without unduly
infringing on speech?
Few regulations of truthful commercial speech survive this test unless the speech promotes an
illegal activity. The Supreme Court has struck down bans on advertising for legal products.
The Lanham Act, the Federal Trade Commission Act establish the federal power to oversee false
or deceptive advertising and allocate authority primarily to the Federal Trade Commission.
Although other agencies (most notably, the Federal Communications Commission and the Food
and Drug Administration) are involved, the FTC is the primary advertising regulator. The
commission uses several measures to police advertising – some preventive and some corrective.
Advertisers who believe the FTC unjustly sanctions them may appeal FTC rulings in federal
court.
Congress enacted the CAN-SPAM Act to help prevent unsolicited e-mail messages. The law
applies to advertising and promotions. A majority of states also have anti-spam laws. The federal
Controlling the Assault of Non-Solicited Pornography and Marketing Act also provides for
punishment of unsolicited email marketing or pornography.
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Using reasoning similar to that in New York Times v. Sullivan, the Supreme Court’s decision in
Federal Election Commission v. Citizens United distinguished between corporate political
“speech” and commercial speech. Relying on the public’s right to free-flowing information and
the nearly impossible differentiation of “the press” from other companies, the Court held that
regulations of businesses’ non-commercial speech should be reviewed under something close to
strict scrutiny rather than under the commercial speech doctrine.
Outline
I. What Is Commercial Speech?
II. Evolving Commercial Speech Protection
a. False and Deceptive Advertising
b. Puffing Up Claims
c. Promoting Vice and Dangerous Products
d. Advertising That Offends
e. Promoting Corporations and Professional Activities
f. Advertising Online
III. Remedying Problems Through Executive Agencies
g. The Federal Trade Commission
h. The Federal Communications Commission
IV. Cases for Study
i. Central Hudson Gas & Electric Corp. v. Public Service Commission of
New York
j. Sorrell v. IMS Health Inc.