Q.: What does the term “commercial speech” mean?
A.: The phrase came from a U.S. Supreme Court decision in 1942 when the owner of a World War I-vintage submarine sued the City of New York over a statute that forbade him to pass out flyers advertising tours of his boat. The high court labeled the flyers “purely commercial,” even though they had an editorial on one side complaining about city policies. The term “commercial speech” refers to speech—printed, broadcast or on the Internet—that advertises a product or service.
Q.: How is “commercial speech” different from “political speech”?
A.: The U.S. Supreme Court has ruled that “political speech”—speech that deals with issues of public interest or social concern—is entitled to full protection under the 1st Amendment to the U.S. Constitution. It may be limited by government only rarely and under very limited circumstances. “Commercial speech,” however, is given much less protection. It may be regulated by the government in cases where “political speech” would be protected.
Q.: What kinds of regulations are permitted for “commercial speech”?
A.: The U.S. Supreme Court has developed rules that offer some protection—considerably more “free speech” protection than was provided when the Court decided in the 1942 submarine flyer case that “commercial speech” was not entitled to 1st Amendment protection. However, “false or misleading” advertising may be restricted—unlike “political speech,” which usually cannot be banned no matter how false or misleading. If political speech is false or misleading and also defamatory, the standard remedy for someone injured is to sue.
Q.: Does advertising get any 1st Amendment protection?
A.: Yes. Under the rules mentioned above, the government (federal, state or local) may restrict advertising even if it is not false or misleading, as long as the government can show that it has a “substantial” interest in the subject matter and that regulating the advertising would further that interest without being too restrictive.
For example, the U.S. Supreme Court upheld a Florida regulation that prevented lawyers from using direct mail to solicit accident victims within 30 days of an accident on the grounds that such an intrusive practice reflected poorly on the profession. The Court felt that protecting the reputation of the legal profession was a “substantial” governmental interest and that the restriction was narrowly tailored to serve that interest. The regulation did not bar all advertising, and it only prevented direct mail advertising for 30 days.
Q.: What remedy do I have if I believe I have been the victim of false advertising?
A.: There are federal and state laws that govern this field, with both civil and criminal penalties, depending on the harm caused. The Federal Trade Commission may order an advertiser to “cease and desist” if the agency finds that an ad is false or misleading. Warner-Lambert Company was forced to stop running ads saying that its Listerine® mouthwash helped prevent colds. Further, the company had to state in future advertising that its product would not help prevent colds or sore throats. Typically, the remedy provided is designed to halt the false advertising. However, individuals who can demonstrate harm from false advertising may be able to sue for damages.
Q.: Do commercial speech rulings mean that advertising must be absolutely truthful?
A.: Not exactly. The law allows some exaggeration, called “puffery.” Regulators don’t believe that the average consumer is misled by claims of general superiority, excellent performance or top quality. The law intercedes only when there is specific and false (or misleading) performance claim that likely would affect the average consumer’s purchase decision. For example, a television ad showing a toy airplane flying when the toy cannot fly on its own would be false.
Q.: Is that why I see ads on TV with small disclaimers on the bottom of the screen?
A.: Exactly. Those disclaimers are required to keep the ad from leaving a false impression. If the ad shows the product performing in a way that the consumer will be unlikely to duplicate, like driving an SUV up the side of a steep mountain, the ad must explain that a professional driver is behind the wheel on a special driving course.
Q.: Who can be held responsible if it turns out that the advertising for a product is false?
A.: The usual culprit is the company that is selling the product. But the advertising agency that created the ad also might be held responsible if it can show that the agency contributed to misleading the consumer by not verifying the information provided by the company.
Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Professors Frances L. Collins and Timothy D. Smith, who teach in the School of Journalism and Mass Communication at Kent State University. It was updaed by Tim Smith.