Law Commons^™

The Impossibility Of Corporate Political Ideology: Upholding Sec Climate Disclosures Against Compelled Commercial Speech Challenges, Erin Murphy

Northwestern University Law Review

To address the increasingly dire climate crisis, the SEC will require public companies to reveal their business’s environmental impact to the market through climate disclosures. Businesses and states challenged the required disclosures as compelled, politically motivated speech that risks putting First Amendment doctrine into further jeopardy. In the past five years, the U.S. Supreme Court has demonstrated an increased propensity to hear compelled speech cases and rule in favor of litigants claiming First Amendment protection from disclosing information that they disagree with or believe to be a politically charged topic. Dissenting liberal Justices have decried these practices as “weaponizing the …

Manipulation And The First Amendment, Helen Norton

William & Mary Bill of Rights Journal

This Article examines new conceptual tools for understanding manipulation and its harms. More specifically, Part I draws from ethicists' insights to explain how manipulation can inflict harms distinct from those imposed by coercion and deception, and to explain why addressing these distinct harms is a government interest sufficiently strong to justify appropriately tailored interventions.

Part II explores how these conceptual tools also help us understand when, how, and why government can regulate manipulation consistent with the First Amendment. As a threshold matter, note that manipulative online interfaces and related design choices may be better understood as conduct, rather than speech …

The Regulation Of Commercial Speech: Can Alternative Meat Companies Have Their Beef And Speak It Too?, Eryn Terry

Vanderbilt Journal of Entertainment & Technology Law

Would you eat a hamburger that was made in a petri dish? Consumers may have this option soon as laboratory-grown meat begins to hit supermarket shelves. Laboratory-grown meat is made from animal stem cells that eventually transform into primitive fibers and tissue within the confines of a petri dish. Although a lot remains unknown about laboratory-grown meat, consumers can think of it as meat production without the farm. How might consumers react to meat labels indicating that their products were made in a petri dish? Laboratory-grown meat companies have yet to find out, as some states have passed laws that …

Fosta: A Necessary Step In Advancement Of The Women’S Rights Movement, Alexandra Sanchez

Touro Law Review

No abstract provided.

This Isn't Lochner, It's The First Amendment: Reorienting The Right To Contract And Commercial Speech, William French

Northwestern University Law Review

The commercial speech doctrine has long weathered accusations that it is simply an attempt to reinvigorate the laissez-faire protections provided by Lochner v. New York. The modern interpretation of Lochner is generally condemnatory, arguing that its “right to contract” is a symbol of the Supreme Court’s unprincipled decision to impose its own economic preferences upon the nation. Even though Lochnerism itself has been dead for nearly 100 years, some scholars believe that the First Amendment’s commercial speech doctrine is on its way to replicating the defenses provided by the right to contract. The argument goes that because speech pervades …

Platforms, The First Amendment And Online Speech: Regulating The Filters, Sofia Grafanaki

Pace Law Review

In recent years, online platforms have given rise to multiple discussions about what their role is, what their role should be, and whether they should be regulated. The complex nature of these private entities makes it very challenging to place them in a single descriptive category with existing rules. In today’s information environment, social media platforms have become a platform press by providing hosting as well as navigation and delivery of public expression, much of which is done through machine learning algorithms. This article argues that there is a subset of algorithms that social media platforms use to filter public …

Commercial Clicks: Advertising Algorithms As Commercial Speech, Kerri A. Thompson

Vanderbilt Journal of Entertainment & Technology Law

Congressional hearings have finally called for the "right regulation" of social media platforms. The First Amendment, however, has shielded internet companies from regulation since the birth of social media. Even if Congress enacts legislation now, internet companies will be able to defend against the "wrong regulation" by claiming the regulation unconstitutionally limits their freedom of speech. This Article uses Facebook's advertising algorithms as a case study of how Congress can properly regulate Facebook by analyzing the advertising algorithms as commercial speech, which receives less protection under First Amendment jurisprudence. In doing so, Congress can protect the strong public interest in …

Compelled Commercial Disclosures: Zauderer’S Application To Non-Misleading Commercial Speech, Alexis Mason

University of Miami Law Review

In 1980, the Supreme Court held that a prohibition on commercial speech is subject to intermediate scrutiny. Roughly five years later, in Zauderer, the Court provided guidance on specific instances in which the government may compel commercial speech. The Court held that a requirement that goods or services disclose “factual and uncontroversial” information is constitutional so long as the requirement is not unduly burdensome, and the requirement is “reasonably related to the State’s interest in preventing deception of consumers.” This holding applied a rational basis standard of review to compelled commercial speech aimed at curing deception of consumers.

Despite …

Harmonizing The Tension Between The First Amendment And Publicity Rights And Finding The Right Balance: Discerning How Much Freedom Is Warranted And What Needs Protection, William Buchsbaum

The University of Cincinnati Intellectual Property and Computer Law Journal

This paper examines the tension between the First Amendment and Publicity Rights considering why and how friction is emerging, the legal underpinnings and theories behind the development of publicity rights and how to reconcile this with values raised in support of the First Amendment. This collision course of rights occurs where property interests have vested in human identity itself which brings us face to face with the outer limits of free speech and expression under the First Amendment and evens tests the notion of how we define speech. The paper takes a dive into some of the currently arising issues …

Playing Word Games With New York’S No Surcharge Law, Katie Coggins

Touro Law Review

No abstract provided.

First Amendment Commercial Speech—Swipe Fees Mute Texas Merchants, Shelby T. Perry

SMU Law Review

No abstract provided.

Cultural Democracy And The First Amendment, Jack M. Balkin

Northwestern University Law Review

Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.

The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems …

The Calm After The Storm: First Amendment Cases In The Supreme Court’S 2000-2001 Term, Joel Gora

Touro Law Review

No abstract provided.

By Any Other Name: Image Advertising And The Commercial Speech Doctrine In Jordan V. Jewel, Kelly Miller

Loyola of Los Angeles Entertainment Law Review

This Comment focuses on the commercial speech doctrine as applied to modern advertising strategies, specifically, corporate image advertising. It centers on the recent litigation between basketball superstar Michael Jordan and a Chicago-area grocery chain, Jewel-Osco. When Michael Jordan was inducted into the Basketball Hall of Fame, Jewel-Osco was invited to submit a congratulatory ad for a commemorative issue of Sports Illustrated devoted exclusively to Jordan’s career and accomplishments. Because Jordan had spent the bulk of his storied professional basketball career with the Chicago Bulls, the ad seemed a natural fit. Jordan, who did not give permission for his name to …

First Amendment; Freedom Of Speech; Commerical Speech And Advertising; Metpath, Inc. V. Imperato, Sheryl S. Kantz

Akron Law Review

"The decision of Metpath, Inc. v. Imperato is indicative of the growing trend of the judiciary toward affording "commercial speech" the protective shield of the first amendment. As shown by Metpath, where the concern is advertising by a medical clinic, speech with commercial overtones is afforded protection where a public interest in the subject and content of the speech is demonstrated. However, the perimeters of such protection have not been defined by this or previous decisions."

From Bigelow To Shapero: Steps Along The Way In Attorney Advertising, Horace E. Johns

Akron Law Review

In essence, the rationale for denying attorneys the right to advertise was to protect the public from overly-zealous attorneys who might be inclined to utilize unscrupulous methods to take advantage of unknowing clients.

Five reasons have been offered to support bans on advertising; (1) protection of consumers from misrepresentation concerning both price and the likelihood of successful litigation; (2) commercialization of the legal profession, resulting in neglect of clients; (3) prevention of overcharging and the securing of too many cases by attorneys to cover the costs of advertising; (4) protection of the bar's integrity; and (5) initiation of too many …

The Export Administration Act's Technical Data Regulations: Do They Violate The First Amendment?, Kenneth Kalivoda

Georgia Journal of International & Comparative Law

No abstract provided.

A Balanced Diet Of First Amendment Cases, Joel Gora

Touro Law Review

No abstract provided.

Compelled Commercial Speech, Robert Post

West Virginia Law Review

No abstract provided.

Solicitors' Right To Advertise: A Historical And Comparative Analysis, M. Catherine Harris

Georgia Journal of International & Comparative Law

No abstract provided.

Stubborn Things: An Empirical Approach To Facts, Opinions, And The First Amendment, Daniel E. Herz-Roiphe

Michigan Law Review First Impressions

This essay offers an empirical approach to the problem, rooted in an argument that the underlying rationale for the fact/opinion distinction in compelled speech doctrine tells us something about how this distinction should be policed. Commercial speech enjoys protection by virtue of its value to listeners, it is from the listener's vantage point, then, that courts should assess whether a compelled disclosure is fact or opinion. And if we are interested in learning how disclosures will affect listeners, we might try asking them, just as courts adjudicating trademark suits frequently use consumer surveys to determine how customers understand the meaning …

A Disclosure-Focused Approach To Compelled Commercial Speech, Andrew C. Budzinski

Michigan Law Review

In 2010, the Food and Drug Administration passed a rule revising compelled disclaimers on tobacco products pursuant to the Family Smoking Prevention and Tobacco Control Act. The rule required that tobacco warnings include something new: all tobacco products now had to bear one of nine graphic images to accompany the text. Tobacco companies filed suit contesting the constitutionality of the rule, arguing that the government violated their right to free commercial speech by compelling disclosure of the graphic content. Yet First Amendment jurisprudence lacks a doctrinally consistent standard for reviewing such compelled disclosures. Courts’ analyses typically depend on whether the …

Commercial Speech In Crisis: Crisis Pregnancy Center Regulations And Definitions Of Commercial Speech, Kathryn E. Gilbert

Michigan Law Review

Recent attempts to regulate Crisis Pregnancy Centers, pseudoclinics that surreptitiously aim to dissuade pregnant women from choosing abortion, have confronted the thorny problem of how to define commercial speech. The Supreme Court has offered three potential answers to this definitional quandary. This Note uses the Crisis Pregnancy Center cases to demonstrate that courts should use one of these solutions, the factor-based approach of Bolger v. Youngs Drugs Products Corp., to define commercial speech in the Crisis Pregnancy Center cases and elsewhere. In principle and in application, the Bolger factor-based approach succeeds in structuring commercial speech analysis at the margins of …

Mapping The Forms Of Expressive Association, Randall P. Bezanson, Sheila A. Bentzen, C. Michael Judd

Pepperdine Law Review

Freedom of expressive association is a relatively new right under the First Amendment, and as a result, its key definitional aspects are continually in flux. Scholarship to- date focuses on the Supreme Court’s treatment of expressive associations, but because the Court has never truly defined what an expressive association is, the Scholarship also fails to really define the boundaries and characteristics of an expressive association. This Article begins to fill this gap in the literature and takes on the task of “mapping” the forms of expressive association. Our goal is to begin the organizing, defining, and classifying task by identifying …

The North Carolina Woman’S Right To Know Act: An Unconstitutional Infringement On A Physician’S First Amendment Right To Free Speech, Ryan Bakelaar

Michigan Journal of Gender & Law

The North Carolina Woman’s Right to Know Act represents the crossroads of the Supreme Court’s First Amendment, informed consent, and abortion-related jurisprudence. The Act requires physicians to perform an obstetric ultrasound, verbally convey specific information regarding ultrasonographic findings, and communicate a host of other information to patients seeking abortions. The purported goal of the Act is to ensure that physicians obtain appropriate informed consent from such patients. By compelling a physician to convey this information, the State violates the physician’s First Amendment rights. Indeed, the State may not compel an individual to convey the State’s ideological message. Further, any statute …

Building The House On A Weak Foundation: Edenfield V. Fane And The Current State Of The Commercial Speech Doctrine, Dennis William Bishop

Pepperdine Law Review

No abstract provided.

Educational Media Company At Virginia Tech, Inc. V. Swecker: First Amendment Lite Waters Down Commercial Speech Protection, Justin A. Redd

Journal of Business & Technology Law

No abstract provided.

Citizens United And The Threat To The Regulatory State, Tamara R. Piety

Michigan Law Review First Impressions

Although Citizens United has been roundly criticized for its potential effect on elections and its display of judicial immodesty (or "activism"), the effect of the case which may be both most profound and perhaps most pernicious is its effect on the commercial speech doctrine. This is an aspect of the case which has been largely overlooked. Most people seem to be unaware of any connection between election law and the commercial speech doctrine-except, that is, those who have been working long and hard to accomplish the change it foreshadows. They are keenly aware of its implications.

Direct-To-Consumer Genetic Tests, Government Oversight, And The First Amendment: What The Government Can (And Can't) Do To Protect The Public's Health, Gail H. Javitt, Erica Stanley, Kathy Hudson

Oklahoma Law Review

No abstract provided.

The Run For The Roses Meets The First Amendment: An Examination Of Desormeaux V. Kentucky Racing Commission And The Constitutionality Of Prohibitions On Jockey Advertising, William P. Barnette

Cleveland State Law Review

Desormeaux v. Kentucky Racing Commission raises a number of significant First Amendment issues. After providing the background of the case and discussing issues related to jockey advertising, this article will analyze the Desormeaux plaintiffs' claims under a variety of First Amendment doctrines, including: political speech, commercial speech, public employer, and public forum. The article concludes that the jockeys present a strong First Amendment challenge to the regulation as applied in Desormeaux, but that on the larger issue of jockey advertising the Commission has valid arguments in support of the prohibition.