Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Institution
- Publication
- Publication Type
Articles 1 - 10 of 10
Full-Text Articles in Law
Against Freedom Of Commercial Expression, Tamara R. Piety
Against Freedom Of Commercial Expression, Tamara R. Piety
Tamara R. Piety
No abstract provided.
Panel Iii: Trademarks V. Free Speech In Cyberspace, Sonia Katyal, Robert Weisbein, William Mcgeveran, Brett Frischmann
Panel Iii: Trademarks V. Free Speech In Cyberspace, Sonia Katyal, Robert Weisbein, William Mcgeveran, Brett Frischmann
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Speech, Spam, And Central Hudson: Redefining The Terms Of Commercial Speech, Justin Torres
Speech, Spam, And Central Hudson: Redefining The Terms Of Commercial Speech, Justin Torres
Justin Torres
Congressional attempts to curtail the growth of email spam consistent with the First Amendment highlight the uncertainty and confusion surrounding the Supreme Court’s commercial speech doctrine. This confusion stems from two central yet ambiguous terms central: “commercial speech” and “substantial state interest.” Throughout its commercial speech cases, the Court has broadened and narrowed the definition of commercial speech in various contexts, subjecting some speech to commercial speech regulations while exempting other speech. And it has steadily broadened the definition of “substantial state interest” to take in a number of dignitary and moral harms, to the point that the requirement is …
‘Baby Boomers’ And The Branding Of Political Speech: An Unintended Consequence Of Bono’S Red Campaign, Robert E. Koulish
‘Baby Boomers’ And The Branding Of Political Speech: An Unintended Consequence Of Bono’S Red Campaign, Robert E. Koulish
Robert E. Koulish
In this paper I will examine the likely demise of the commercial speech doctrine. The paper examines Bono's Red Campaign and cause related marketing as a case study to reveal how the supreme court is likely to vote on commercial speech the next time it visits the issue. The Court came close to overthrowing the doctrine in its 2002 Nike non-decision. Next time out, the Court is likely to blur the distinction between commercial speech and political speech, and thus give corporations the right of personhood to mislead consumers in advertising, marketing and public relations. The demise of commercial speech …
Truth And Advertising: The Lanham Act And Commercial Speech Doctrine, Rebecca Tushnet
Truth And Advertising: The Lanham Act And Commercial Speech Doctrine, Rebecca Tushnet
Rebecca Tushnet
The Lanham Act and its state counterparts in trademark and unfair competition law regulate speech in ways inconsistent with the current thrust of Supreme Court’s commercial speech doctrine. The lines between confusing and informative uses of trademarks and between true and false advertising claims are difficult to draw, in ways that in other contexts – particularly libel doctrine – have led courts to impose increasing burdens on plaintiffs and regulators. I will discuss the First Amendment implications of distinguishing truth from falsity in commercial speech, applied to trademark infringement and to other types of false advertising. In addition, on a …
Commercial Speech, First Amendment Intuitionism And The Twilight Zone Of Viewpoint Discrimination, Martin H. Redish
Commercial Speech, First Amendment Intuitionism And The Twilight Zone Of Viewpoint Discrimination, Martin H. Redish
Faculty Working Papers
In this article, I seek to demonstrate that arguments made by scholars against First Amendment protection for commercial speech may be divided into three categories: (1) rationalist, (2) intuitionist, and (3) ideological. I argue that all three forms of opposition to commercial speech protection suffer, either directly or indirectly, from the same fundamental flaw: each constitutes or at the very least facilitates creation of a constitutionally destructive form of viewpoint discrimination. I show that all of the specific rationales for opposing First Amendment protection for commercial speech are fatally and illogically underinclusive: In each case the justification asserted to support …
Prediction Markets And The First Amendment, Miriam A. Cherry, Robert L. Rogers
Prediction Markets And The First Amendment, Miriam A. Cherry, Robert L. Rogers
Faculty Publications
The continuing development of prediction markets is important because of their success in foretelling the future in politics, economics, and science. In this article, we identify the expressive elements inherent in prediction markets and explore how legislation such as the Unlawful Internet Gambling Enforcement Act of 2006 might harm such predictive speech. This article is the first to explore First Amendment protections for prediction markets in such depth, and in so doing, we distinguish prediction markets from other regulated areas such as gambling, commodities, and securities trading. The article’s examination of prediction markets also illustrates the limitations of current commercial …
Mixed Speech: When Speech Is Both Private And Governmental, Caroline Mala Corbin
Mixed Speech: When Speech Is Both Private And Governmental, Caroline Mala Corbin
Articles
Speech is generally considered to be either private or governmental, and this dichotomy is embedded in First Amendment jurisprudence. However, speech is often neither purely private nor purely governmental but rather a combination of the two. Nonetheless, the Supreme Court has not yet recognized mixed speech as a distinct category of speech. This Article suggests considerations for identifying mixed speech and exposes the shortcomings of the current approach of classifying all speech as either private or governmental when determining whether viewpoint restrictions pass First Amendment muster. Treating mixed speech as government speech gives short shrift to the free speech interests …
Attorneys As Debt Relief Agencies: Constitutional Considerations, Marisa Terranova
Attorneys As Debt Relief Agencies: Constitutional Considerations, Marisa Terranova
Fordham Journal of Corporate & Financial Law
No abstract provided.
Market Failure In The Marketplace Of Ideas, Tamara R. Piety
Market Failure In The Marketplace Of Ideas, Tamara R. Piety
Tamara R. Piety
Proponents of expansive First Amendment protection for commercial speech often invoke "the marketplace of ideas" metaphor. The use of this metaphor simultaneously invokes generalized notions about the commitment to free markets and free expression. It implies these values are intertwined and that more protection for commercial speech means both more freedom and more truth. I argue that expanding First Amendment protection for commercial speech will not result in the either more truth or more freedom but rather to less of each and explore the ways in which, even with only limited protection for truthful commercial speech, the market has actually …