False Commercial Speech

Truth in advertising is a compelling government interest. The First Amendment does not protect false commercial speech. Accordingly, the government has the ability to regulate and restrain business enterprises from false and misleading representations, including disparaging remarks about competitors. To determine if speech is commercial, it must include:

  • an advertisement;
  • reference to a specific product or service; and
  • the speaker must have an economic motivation for the speech.

Currently, states are enacting statutes restricting commercial spam e-mails with subject lines intended to mislead the recipient that the e-mail is from a friend or acquaintance.

Physicians and lawyers are regulated in the representations they can make in advertising to protect the public from misleading information concerning their expertise.

My Web site advocates tax avoidance, and I sell a book explaining my views on the site. Is my Web site subject to free speech regulations?

Yes. Your Web site is a commercial enterprise and commercial speech may be more broadly regulated than expression of personal belief. If your Web site only set out your views, gave information about tax avoidance and there was no economic gain for you, a stronger argument for freedom from speech regulation might exist.

I received a medical degree over the Internet. Can the state force me to remove "M.D." from my business cards, clinic sign and Yellow Pages ad?

Yes. If you are not licensed as a medical doctor in your state, you can be forced to remove M.D. from any advertising. The state has a legitimate interest in preventing you from making misleading statements to the public.

Non-misleading speech can also be regulated if the regulation is advancing a legitimate government interest. For example, the freedom of telemarketers to call has been limited by the national do-not-call registry. However, their First Amendment rights are not violated because the federal government has an interest in protecting the privacy of individuals in their homes and protecting consumers against the risk of fraudulent and abusive solicitations.

Can I advertise that I am certified in the diagnosis of autism?

Yes-if your certification credentials were issued by a bona fide organization whose standards are rigorous, objectively clear and verifiable.

Can I advertise a seminar guaranteed to prove that no law requires citizens to pay income tax?

No. The statement is fraudulent, and since you are attempting to market and profit from a seminar, the advertisement is commercial speech rather an expression of your political beliefs. The First Amendment does not protect your comments in this situation.

McDonald's is threatening to sue me for trademark infringement if I do not remove their logo from my Web site, which contains information and links about the content of their food. Is the content on my Web site protected by the First Amendment?

Yes. If your Web site is not purely commercial, you have the right to express your beliefs and opinions regarding McDonald's food. Trademarks, which protect a company's rights against unfair competition, cannot be used to control informational language, including negative criticism.

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