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It Depends on What the Meaning of \u22False\u22 is: Falsity and Misleadingness in Commercial Speech Doctrine

By Rebecca Tushnet


While scholarship regarding the Supreme Court\u27s noncommercial speech doctrine has often focused on the level of protection for truthful, non-misleading commercial speech, scholars have paid little attention to the exclusion of false or misleading commercial speech from all First Amendment protection. Examining the underpinnings of the false and misleading speech exclusion illuminates the practical difficulties that abolishing the commercial speech doctrine would pose. Through a series of fact patterns in trademark and false advertising cases, this piece demonstrates that defining what is false or misleading is often debatable. If commercial speech were given First Amendment protection, consumer protection and First Amendment protection would be at odds. Rebutting the idea that constitutionally protected commercial speech could effectively address consumer abuses through fraud statues and would not be offensive to the First Amendment, the piece explains that subjecting commercial speech to First Amendment scrutiny would almost completely contract the scope of false advertising law and erode consumer protection. The piece concludes that while excluding commercial speech from constitutional protection has real costs, we are better off in a system that regulates false and misleading commercial speech without heightened First Amendment scrutiny

Topics: false advertising, commercial speech, consumers, Constitutional Law, Consumer Protection Law, First Amendment, Intellectual Property Law, Marketing Law
Publisher: Scholarship @ GEORGETOWN LAW
Year: 2007
OAI identifier: oai:scholarship.law.georgetown.edu:facpub-1795
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