Law Commons^™

The Prosecution Of Climate Change Dissent

Marquette Benefits and Social Welfare Law Review

A May 2015 op-ed in the Washington Post by Sen. Sheldon Whitehouse (D. RI) accused the fossil fuel industry of funding a campaign to mislead Americans about the environmental harm caused by carbon pollution. The Attorney Generals of New York and Massachusetts began investigating Exxon Mobil. We look at these two investigations through the lenses of the federal mail and wire fraud statutes (at issue in the racketeering case against big tobacco), and the First Amendment.

We analyze the difficulty of prosecuting someone under the federal mail and wire fraud statutes for expressing an opinion, and discuss why scientific statements …

Going Native: The Rise Of Online Native Advertising And A Recommended Regulatory Approach, A.J. Casale

Catholic University Law Review

J.D. Candidate, May 2016, The Catholic University of America, Columbus School of Law; B.A., 2006, The George Washington University. The author would like to thank the staff and editors of the Catholic University Law Review for their contributions to this Comment.

Multifactoral Free Speech, Alexander Tsesis

Faculty Publications & Other Works

This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …

A New First Amendment Goal Line Defense – Stopping The Right Of Publicity Offense, Mark Conrad

Mark A. Conrad

The use of images with the recognizable features of former NCAA student-athletes by a digital video firm has resulted in two highly publicized lawsuits by former college players claiming violations of their right of publicity. Thus far, two federal appeals courts – the Third Circuit in Hart v. Electronic Arts and the Ninth Circuit in Keller v. Electronic Arts -- have refused to dismiss their claims, concluding that the use of the player images constitute a valid cause of action. While their actions have garnered sympathy among the public and many scholars, it is the author’s contention that both lawsuits …

The Heroic Corporation And First Amendment Romanticism: A Response To Professorsredish And Neuborne, Tamara R. Piety

Tamara R. Piety

Response to book reviews of my book "Brandishing the First Amendment" by Martin Redish and Burt Neuborne.

Pragmatism, Paternalism, And The Constitutional Protection Of Commercial Speech, Allen K. Rostron

Faculty Works

Two key perspectives have emerged in the Supreme Court’s decisions about First Amendment protection of commercial speech. The anti-paternalism view, originally embraced by the Court’s most liberal members but now advanced by Clarence Thomas, holds that the government has only a narrow interest in preventing false advertising. To the extent that commercial speech is not fraudulent or misleading, the government must simply let people hear it and decide for themselves whether they find it persuasive. Other judges argue that courts need to be more pragmatic about the effects of advertising and more deferential to government attempts to promote public health …

Economic Theory Lost In Translation: Will Behavioral Economics Reshape The Compelled Commercial Speech Doctrine, Kyle Rozema

Scholarship@WashULaw

This Article consolidates the economic and legal theory needed to properly analyze the impact of salience measures on the commercial speech doctrine. By walking through various First Amendment scenarios, this Article describes and differentiates between the two main governmental interests motivating graphic image requirements on cigarette labels: reducing smoking and informing consumers. The Article then sets up a game-theoretic model of the compelled commercial speech doctrine and uses Bayesian inference to make assumptions about how the Supreme Court would rule if it eventually rules on similar graphic images placed on cigarette labels. Solving the model by way of forward induction …

The First Amendment, Gaming Advertisements, And Congressional Inconsistency: The Future Of The Commercial Speech Doctrine After Greater New Orleans Broadcasting Ass'n V. United States, Nicholas P. Consula

Pepperdine Law Review

No abstract provided.

Condoms: The New Medium Of Expression Protected By The First Amendment- People V. Andujar, Leodyne Calixte

Touro Law Review

No abstract provided.

Physician-Patient Communications And The First Amendment After Sorrell, Martha S. Swartz

Martha S. Swartz

To what extent are physician-patient communications protected by the first amendment? Because physicians are engaged in a commercial activity and subject to state licensing, courts have subjected the governmental regulation of physician-patient communication to the lower level of scrutiny that they use to analyze restrictions on commercial speech. As a result, states have been free to enact laws that prohibit physicians from discussing certain topics with their patients, as well as laws that require physicians to use state-mandated scripts in talking with their patients. After the U.S. Supreme Court’s decision in Sorrell vs. IMS Health, it now appears that the …

Deductions For Drug Ads? The Constitution Does Not Require Congress To Subsidize Direct-To-Consumer Prescription Drug Advertisements, Kevin Outterson, Shoshana Speiser

Faculty Scholarship

The First Amendment protects lawful, non-misleading advertising as commercial speech, which constrains Congressional attempts to regulate direct-to-consumer advertising (DTCA) of prescription drugs. But the Constitution does not require the federal government to subsidize advertising through the Tax Code. Congress could revoke the legislative gift of tax deductions for DTCA without running afoul of regulating speech. While DTCA proponents maintain that DTCA increases disease awareness and leads to more doctor-patient conversations, Congress could find that these purported benefits are outweighed by other negative consequences, including excessive prescribing.

The New First Amendment And Its Implications For Combating Obesity Through Regulation Of Advertising, Tamara R. Piety, Samantha Graff

Tamara R. Piety

This chapter reviews the recent decisions of the Supreme Court as they bear on attempts to combat childhood obesity through regulating marketing and concludes that attempts to regulate marketing will face substantial First Amendment obstacles in the courts.

Who Shot Ya: Rap Beef "Diss" Tracks And The First Amendment., Andres Flores

ANDRES FLORES

The purpose of this Article is to add to the volume of scholarly work in the area of First Amendment protections for rap artists who create so called “diss” songs aimed at disrespecting their competitors and their possible liabilities for such songs. It is evident that rap music has become a permanent part of popular music, and as the market grows smaller and competition gets tougher rap artists must find new ways to break into the industry and stay relevant. One of the ways rap artist do this is by creating a controversy with other, more established rappers. These tactics …

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

Tamara R. Piety

This brief essay, intended for publication in electronic form, discuses the connection between Citizens United v. FEC and the commercial speech doctrine arguing that Citizens United is likely to serve as ammunition to expand protection for commercial speech.

The First Amendment And Commercial Speech, C. Edwin Baker

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Do Not Knock? Lovell To Watchtower And Back Again, Geoffrey D. Korff

Geoffrey D Korff

This article looks at the commercial speech doctrine through the lens of a recent development in how the doctrine is being applied to organizations that canvas neighborhoods to speak on behalf of political, charitable, or religious organizations. The article also traces the history of the commercial speech doctrine, up through the present era.

Several municipalities, most of which are located in Ohio, have taken a novel approach to preventing this type of canvassing. They have enacted a version of the federal "Do-Not-Call" list, which applies to canvassers. Current rulings from the Supreme Court do not clarify how this dilemma will …

To Live In In-‘Fame’-Y: Reconceiving Scandalous Marks As Analogous To Famous Marks, Jasmine C. Abdel-Khalik

Faculty Works

In 1905, Congress enacted a revised trademark registration act, which included a prohibition on registering marks containing or consisting of scandalous or immoral material. Because Congress failed to provide any further guidance either in legislative history or in the statutory language, administrative bodies and the courts have struggled to define this standard. Over the past century, decisions applying this prohibition have been inconsistent. The general public and potential trademark owners are unable to predict accurately if a mark will be accepted or refused for federal registration, which has some significant benefits. Perhaps because of this uncertainty, some estimate that hundreds …

Free Advertising: The Case For Public Relations As Commercial Speech, Tamara R. Piety

Tamara R. Piety

The commercial speech doctrine has suffered from definitional ambiguity. Some commentators have argued that the doctrine's application should be limited to speech that is clearly advertising and should not be extended to cover speech by a corporation on matters of public concern. This is of particular concern with respect to public relations communications about labor or environmental practices (to name just two examples) which industry advocates argue should be treated like fully protected speech. In this article I argue that because all for-profit corporate speech is in furtherance of its commercial purpose, public relations speech should be presumptively covered by …

Justice Clarence Thomas: The Emergence Of A Commercial-Speech Protector, David L. Hudson Jr.

Law Faculty Scholarship

An examination of Justice Clarence Thomas' jurisprudence regarding commercial speech.