Monday, April 07, 2014

Reading list: false advertising and prior restraint

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.

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