Corinne Stuart, The Applicability of the Prior Restraint Doctrine to False Advertising Law (Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 2008), 21 Geo. Mason L. Rev. 531-555 (2014). Argues that prior restraint doctrine should be applied to preliminary injunctions in false advertising cases because truthful commercial speech is valuable. Not trademark cases?
My own reaction: By hypothesis, some hopefully small
percentage of preliminary injunctions is wrongly granted, meaning that truthful
commercial speech was halted. Under Central Hudson, does the government’s
interest in halting false commercial speech—which is both unprotected and
potentially highly damaging to consumers and competitors—justify the resulting burden
on truthful commercial speech? I’d say
yes, since the interest is significant and the general standard for preliminary
relief is a well-established way of managing the risk of error.