NEW CONSTITUTIONAL RIGHT TO ADVERTISE

• NCJ Number: 50041
• Journal: American Bar Association Journal Volume: 64 Dated: (FEBRUARY 1978) Pages: 206-210
• Author(s): P ELMAN
• Date Published: 1978
• Length: 5 pages
• Corporate Author: American Bar Association
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

TWO U.S. SUPREME COURT DECISIONS EXTENDING PROVISIONS OF THE FIRST AMENDMENT TO ADVERTISING ARE EXAMINED. ALTHOUGH THESE DECISIONS CONSIDERABLY MODIFY PREVIOUS GOVERNMENT REGULATIONS, DECEPTION IS STILL PROHIBITED.

Abstract

IN 1942 THE SUPREME COURT RULED THAT THE FIRST AMENDMENT RIGHT OF FREE SPEECH DID NOT EXTEND TO ADVERTISING (VALENTINE V. CHRESTENSEN). IN 1975 (BIGELOW V. VIRGINIA), THE COURT MODIFIED THIS STAND BY OBSERVING THAT THE 'RELATIONSHIP OF SPEECH TO THE MARKETPLACE OF PRODUCTS OR SERVICES DOES NOT MAKE IT VALUELESS IN THE MARKETPLACE OF IDEAS.' IN 1976 (VIRGINIA STATE BOARD V. VIRGINIA CITIZENS CONSUMER COUNCIL) THE COURT DEFINITELY EXTENDED FIRST AMENDMENT PROTECTION TO ADVERTISING. THE VIRGINIA CASE INVOLVED A STATUTE PROHIBITING PHARMACISTS FROM ADVERTISING PRICES OF PRESCRIPTION DRUGS. THE MAJORITY OPINION STATED THAT ALTHOUGH THE ADVERTISER'S INTEREST IS 'A PURELY ECONOMIC ONE' THAT 'HARDLY DISQUALIFIES HIM FROM PROTECTION UNDER THE FIRST AMENDMENT.' HOWEVER, THE VIRGINIA STATE BOARD CASE CONTAINED A FOOTNOTE (FOOTNOTE 24) WHICH UPHELD GOVERNMENT'S RIGHT TO REGULATE FALSE OR MISLEADING ADVERTISING. SUBSEQUENT LOWER COURT DECISIONS WHICH REFLECT THIS EXTENSION OF FIRST AMENDMENT PRIVILEGE TO ADVERTISING ARE REVIEWED. IT IS CONCLUDED THAT FEDERAL AND STATE GOVERNMENTS MAY NO LONGER ASSUME THE ROLE OF NIT-PICKING CENSOR BUT THAT ADVERTISERS WILL ENJOY FREEDOM OF SPEECH ONLY SO LONG AS THEY TELL THE TRUTH AND ONLY THE TRUTH. AFFIRMATIVE DISCLOSURES AND ADVERTISING SUBSTANTIATION HAVE ALSO BEEN AFFECTED. LOWER COURT DECISIONS HAVE STATED THAT THE GOVERNMENT MAY REQUIRE ONLY 'REASONABLE' SUBSTANTIATION FOR ADVERTISING CLAIMS. DELIBERATE FALSIFICATION OF TEST DATA HAS BEEN CALLED ILLEGAL BUT EXCESSIVE AND BURDENSOME STUDIES ARE NOT REQUIRED. THE POWER OF THE GOVERNMENT TO ORDER AFFIRMATIVE DISCLOSURES HAS ALSO BEEN LIMITED. THESE COURT DECISIONS HAVE CONSIDERABLY MODIFIED PREVIOUS FEDERAL TRADE COMMISSION RULINGS. REFERENCES ARE OMITTED. (GLR)