Fellowship opportunity: Science, tech, and law

For people with PhDs and an interest: the American Association for the Advancement of Science Science & Technology Policy Fellowships (STPF) is committed to actively recruiting competitive applicants to the Judicial Fellowship.

An August 29 webinar will focus specifically on the Judicial fellowship.  Details and to RSVP here: http://www.aaas.org/event/stpf/enhance-your-career-st-policy-fellowships-judicial-fellowship

Functionality: it's in the bag

Schutte Bagclosures Inc. v. Kwik Lok Corp., No. 12-cv-5541 (S.D.N.Y. Jun. 14, 2016)

 

Following up from previous post on an earlier ruling. (Thanks to an eagle-eyed correspondent who probably knows way more than anyone else wants to know about plastic bag closures.)  There’s a bit of tacking here—the court finds that Kwik-Lok’s registrations for bag closure designs cover current versions, despite some changes, forcing Schutte to bear the burden of proof on functionality.  That’s Kwik-Lox’s last victory, though. 

 

The court finds the Kwik-Lok registered bag closures to be functional under Traffix, and just in case under Morton-Norwich too, rejecting the proffered alternative designs (which were produced using 3-D printers, for those of you tracking clever litigation innovations at home) as unproven in their ability to hold up to the kind of rapid automated application required for large-scale production of closed bags.  Apparently these things come in reels, like ticket reels, and work in machines specifically designed to fit the closures.

 

Schutte on L; Kwik-Lok on R.

 

Then, to be extra extra sure, the court continued on to find that confusion was unlikely—these are only sold in batches of at least 4000 to sophisticated consumers, in clearly marked packages.  And, as I commented in my initial post, the federal dilution claim failed for want of fame among the general consuming public.  Interestingly, the court then dismissed the state dilution claim as preempted by patent law under Bonito Boats, since the claim was one regarding product configuration trade dress. While states can require labeling for trade dress to avoid confusion, NY dilution law contemplated a flat ban on potentially patentable “publicly known design and utilitarian ideas which were unprotected by the patent laws,” and that’s a no-no.

 

I don’t recall seeing this reasoning before, but the court cites a few similar cases: Luv N’ Care, Ltd. v. Regent Baby Prods. Corp., 841 F. Supp. 2d 753 (S.D.N.Y. 2012); E. Am. Trio Prods., Inc. v. Tang Elec. Corp., 97 F. Supp. 2d 395 (S.D.N.Y. 2000); Escada AG v. The Limited, Inc., 810 F. Supp. 571 (S.D.N.Y. 1993). 

Query: why not reason similarly about copyright, per Sears/Compco, and invalidate state dilution laws at least as based on copyrightable designs?

A dog's breakfast of false advertising counterclaims

Blue Buffalo Co. v. Nestlé Purina Petcare Co., No. 4:15 CV 384, 2016 WL 3227676 (E.D. Mo. Jun. 13, 2016)

 

Blue Buffalo sued Purina for false advertising; Purina counterclaimed.  On a motion to dismiss the counterclaims, the court got rid of most and kept a few. 

 

Super 7 Lifesource Bits: Purina alleged that Blue Buffalo’s use of the term “Super 7 Lifesource Bits” and associated graphics suggested that they were superior in nutrition to other pet foods and that the products contained a significant amount of the ingredients found in the Lifesource Bits, when the depicted fruits and vegetables likely only made up .25% of the product overall. The challenged ads, packaging, and website statements, taken as a whole, supported a plausible claim for false advertising, though Purina’s claims were weak. Consumer reaction evidence could prove them.

 

Website image touting "exclusive LifeSource Bits"

Savory Sizzlers: Purina alleged that Blue Buffalo falsely advertised its Kitchen Cravings Savory Sizzlers Homestyle Dog Treats as containing bacon as a main ingredient when in fact the product contained no bacon. The front of the pork-based product packaging states in prominent lettering that it features “USA PORK FIRST INGREDIENT.” Likewise, the chicken-based version states “USA CHICKEN FIRST INGREDIENT” prominently on the front of the package. “The only mention of bacon is on the back of the package, which states in small lettering ‘If there’s one thing that will bring dogs running, it’s the smell of bacon sizzling in the pan. Tasty BLUE Sizzlers are the naturally healthy alternative to the real thing, so you can feel good about rewarding your canine companion with the bacon flavor he craves.’”  Purina challenged this language, plus the clear window on the package showing that it was shaped like bacon strips.

 

The court concluded that “no reasonable consumer could believe that Savory Sizzlers contain bacon as a main ingredient,” because the package clearly stated that pork or chicken was the first ingredient [ed. note: I’m a vegetarian, but isn’t bacon made of pork?], and “the only mention of bacon is in the context of a statement about how Savory Sizzlers are not bacon, but rather, are an alternative to bacon.” Dismissal on the pleadings was appropriate because  “the claim alleges that a consumer will read a true statement on a package and will then disregard ‘well-known facts of life’ and assume things about the products other than what the statement actually says.”

 

Health Bars: Purina challenged the names and packaging of two BLUE Health Bars, alleging that they indicated that certain ingredients were primary: Health Bars Baked with Banana and Yogurt (with yellow and cream packaging; bananas and yogurt are ingredients four and five) and Health Bars Baked with Bacon, Egg & Cheese (red packaging; bacon is the fifth ingredient and dried egg and cheese powder are seventh and eighth).  But this didn’t plausibly allege misleadingness. These were dog biscuits; “reasonable consumers know as a fact of life that biscuits are not composed primarily of fruit and yogurt, but rather, like all baked goods, are primarily composed of grains and flours…. While color schemes are often used to connote flavor, they do not necessarily imply ingredient primacy.”

 

Family Favorite Recipes: Mom’s Chicken Pie, Shepherd’s Pie, Backyard BBQ, Turkey Day Feast, and Turducken flavors have photos on the product labels depicting the traditional title dish, allegedly misleading consumers into thinking that the can contains human-grade meals comprised of identical ingredients and ratios of ingredients as those in the traditional dish, in combination with the “family favorite recipes” tagline.  Specifically, Mom’s Chicken Pie flavor doesn’t contain any pie crust or wheat; Shepherd’s Pie doesn’t contain equal parts of meat mixture and potatoes [and no actual shepherd either]; and the rest aren’t comprised of high-quality, whole ingredients, nor are some of the ingredients depicted primary ingredients.  The court found these allegations to “defy credulity. No reasonable consumer would expect these cans of dog food to contain whole turkeys, turduckens, or pies. Nor would any reasonable consumer believe that the Family Favorite Recipes’ references to traditional American meals mean that the same, human grade ingredients are in the cans of dog food.”  [But see the experience of Serena Williams.]

 

Wild Bones Dental Chews: Purina alleged that the packaging misled consumers into thinking the product contains actual bone. Membership in the Wilderness product line allegedly implied “a link to nature and containing ingredients one would find in the wild,” and other products in the Wilderness line contained real elk antlers and beef bones, strengthening the impression.  Also, the bones were in the shape and color of “true bones,” visible through a clear window in the packaging.  Again, the court was distinctly unimpressed.  The “bone” shape was “the shape of a cartoon bone, sized just like a dog biscuit, and is embossed with the word ‘WILDNERNESS.’ The Wild Bones do not even remotely resemble real bones.”

 

Healthy Gourmet Flaked Fish & Shrimp Entrée: the product name allegedly consumers into believing that the product was “comprised primarily of wholesome seafood and shrimp,” while shrimp was only the eighth ingredient, though “ocean fish” was the first ingredient, and “fish broth” was the second. While the allegation that the product was not “comprised primarily of wholesome seafood” was therefore self-defeating, it was tenuously plausible that consumers would believe that shrimp comprised more of the product than it actually does.  The claim “is not so incredible that a reasonable consumer would have to disregard well-known facts of life to believe it.”

Best title of the year candidate

Questions about Google autocompl, via Siva Vaidhyanathan.

Political party bars use of name and logo by dissidents

HT Eric Goldman. This is one of those cases that seems to be an extreme outlier, but then again see United We Stand America v. United We Stand America, New York, applying the Lanham Act to similar but perhaps more limited effect.  [ETA inexplicably omitted name of case, sorry!]

Canegata v. Schoenbaum, 2016 WL 3212270, SX-16-CV-324 (V.I. Super. Ct. May 27, 2016) 

In early May, the Territorial Committee of the Republican Party of the U.S. Virgin Islands held a special meeting setting a date for the territorial convention; adopting rules for selection of nominees and party officers at that convention; and amending the Party’s rules. A few days later, John Canageta, the State Chairman of the Republican Party of the U.S. Virgin Islands, and Robert Schanfarber, the Secretary, issued a “Call of the 2016 Republican Territorial Convention” to Republican voters telling them about the territorial convention.

Then, an alleged majority of the Territorial Committee demanding that Canegata issue a call for the territorial convention to take place on a different day. This group then appointed some individual defendants as the Territorial Convention Subcommittee. Herbert Schoenbaum, the First Vice-Chairman, then issued a call consistent with the Committee’s demand, based on the written refusal of Canageta to abide by the Committee’s demand. The Territorial Convention Subcommittee set up a Facebook page “to communicate with registered Republicans who want to participate in the [May 28, 2016] Territorial Convention.” The title of the page was “Territorial Convention of the Republican Party of the USVI” and identified the date of the convention as May 28. The profile picture contained “an image commonly associated with the Republican Party of the U.S. Virgin Islands,” a variation on the USVI flag, with a red, white and blue elephant logo, with three stars across its back, in the center of an eagle and “GOP” underneath the eagle.

Plaintiffs sought a TRO enjoining defendants’ use of (1) any symbol, emblem and insignia of the Republican National Committee, namely the Elephant; and (2) the “Republican Party of the U.S. Virgin Islands” name. Defendants voluntarily took down the logo, replacing it with a red, white and blue elephant logo upholding five stars across its back, and left the title and description of the Facebook page the same.

The court stated the issue clearly: “the extent to which a political party may prevent a dissident group from using the descriptive name and the symbol, emblem, or insignia of said political party.”  Plaintiffs and defendants were all members of the Republican party, rivals for control of the Territorial Committee.  But defendants were in violation of V.I. law because they didn’t have plaintiffs’ consent to use the name, symbol, emblem, or insignia of the Republican party.

Title 18 V.I.C. § 301(c) provides that:

Whenever a political party in the Virgin Islands affiliates with a national political party, committee, convention or organization, regardless of when such affiliation took place, no association, group, club, organization or instrumentality shall use the symbol, emblem, or insignia, of the national political party, convention, committee or organization which has affiliated with a Virgin Islands political party, without the express consent in writing from the chairman and secretary of the Virgin Islands political party filed with the Supervisor of Elections.

Without a word about the obvious constitutional questions here (for a start, unless “use” means “confusing trademark use,” there’s no way this can survive even gentle scrutiny), the court tried to figure out what constituted “a symbol, emblem, or insignia of the Republican National Committee.”  Given the replacement image’s similarity to the GOP elephant—both are red, white, and blue, with stars across their backs—“the average layman could very well interpret this image as a symbol, emblem, or insignia of the Republican National Committee, especially when used in the context to call a territorial convention of the Republican Party of the Virgin Islands.”  Thus, plaintiffs showed a reasonable probability of success on the merits. 

But the law didn’t cover the party’s “name.”  (Cf. Qualitex, holding that “symbol” covers everything that can hold meaning to consumers.)  But, wait for it, because defendants aren’t the Republican Party of the VI, plaintiffs can also prevent the [trademark] use of the Party’s name via a misappropriation theory.  “Those in control of the Republican Party of the U.S. Virgin Islands may lawfully prevent the appropriation of their name by organizations not functioning under the aegis of the Republican Party of the U.S. Virgin Islands.”

Irreparable harm: Plaintiffs pointed to the confusion “that will certainly ensue with regard to the actual date of the territorial convention.”  This would harm the Party’s reputation and credibility, including with the RNC.  “Loss of control of reputation and loss of good will are established grounds for irreparable injury.” As for harm to defendants, they wouldn’t be harmed by being enjoined from using a name and a symbol they’re not entitled to use, though they could continue their vigorous opposition to the present party leadership:

Defendants can continue to operate their Facebook Page. The relief would be limited to enjoining Defendants from the use of the symbol, emblem, or insignia of the Republican National Committee, namely the image of a red, white and blue elephant logo upholding stars across its back and the use of the “Republican Party of the U.S. Virgin Islands” name to avoid potential confusions among citizens. The injunction need not extend to the point of excluding entirely the use of the descriptive word “Republican”, so long as Defendants make it clear that the named group is in opposition to those currently in control of the Republican Party of the U.S. Virgin Islands. [ed. note: whose full name they can’t use, by those terms.] The purpose here is to avoid potential confusion.

The public interest also favored prevention of confusion about the Republican Party, which would also protect voters’ rights. TRO granted. 

Commercial speech: strategic issues

Strategic Issues:  What questions are we asking now? Where is the law going?

 

Moderator:  Timothy L. Alger, Greenberg Traurig LLP: In today’s economy, what isn’t an ad?  Is the death of the commercial/noncommercial distinction inevitable?

 

A: depends on whether publication values integrity and editorial independence.  If it does, they’ll keep editorial separate. Other risk: if this kind of advertising becomes conventional, it will be accepted and lead to greater mistrust.

 

Piety: Why are ads skull and crossbones? Implicates expertise, and whether everyone’s ideas are equally valuable in all contexts. It’s suicidal: if editorial becomes distrusted as advertising, then looking like editorial won’t provide any competitive advantage. We have historical experience of more Darwinistic selling environment, and it resulted in the Progressive era.

 

Q: does the category commercial speech have any value?  What would happen under strict scrutiny?

 

A: I would fear that courts will feel the need to uphold various regulatory regimes, and do it in ways that weaken strict scrutiny if they can’t distinguish different types of speech.  

 

A: what most clients and lawyers are looking for is predictability. One strict scrutiny test + $100,000 later you know the answer is no good to anyone/hurts the rule of law.  There is an awful lot to the problem of drawing arbitrary distinctions, but it’s difficult to advise clients right now and that’s not good.

 

Kurnit: you could have a different regime w/categories of speech, notwithstanding Reed.  Attempt to avoid SEC: the Court is likely to say that the SEC and perhaps the FDA can use the police power to protect consumers.  But it’s not definable as a practical matter through who created it, what their motive was, etc.; these rules have been displaced.  The impact is to chill the 1A for the NYT/legacy media that value their curation, where there is an economic value for trusted sources. But the WSJ has a wine club and the NYT sells memorabilia, so effort to suggest that we can divide the world into advertising/editorial is gone. The marketplace will reward integrity; bring false advertising claims against those who lie to consumers in their advertising of their own media.

 

Q: concept of commercial speech isn’t just about ads and product labeling.  Many professions are constituted by communication.  You have to be a member of the bar to practice law—does that requirement pass strict scrutiny? 

 

Alger: if it’s a good regulation shouldn’t it pass strict scrutiny?

 

Q: is it the least restrictive means? Does that require CLE?

 

Alger: or we could turn to the Commerce Clause.

 

Piety: that’s just another way of restating carveouts, like commercial speech.  If strict scrutiny were really strict, instead of “most everything fails,” it would be different.  Sullivan produced Anderson v. Liberty Lobby—motion to dismiss. As a practical matter, strict scrutiny means a lot of things will fail, and lots of false/misleading speech will be allowed, as w/libel.

 

Alger: Reed says content discrimination is bad but commercial speech is content based.  Off-site and on-site distinctions are common, and those seem to be content based.  Reed: some justices say that’s unaffected, but it is obviously a content-based distinction. How do we fathom this?

 

Kurnit: False and misleading is content-based; you’ll never have a 1A regime that protects fraud, deception, securities violation—at some point, the gov’t must protect the public weal through content-based carveouts.  Stevens’ notion in Central Hudson: you can do away w/the frivolous stuff, and have a category for that which is false/deceptive and likely to influence a consumer’s purchasing decision.  Must structure analysis for that core.  Can’t imagine abolishing the SEC.  [Others in this room can imagine more than that, which is an issue; also, that standard w/o more won’t distinguish the non-seller’s false speech from the seller’s false speech, both of which are likely to influence purchase.]  Looking at who the speaker is, and whether it’s an ad, has to go.  It’s the content and whether it’s fraudulent, not the speaker. [I don’t really understand how he can say this.  If his standard is fraud, then the speaker is very important.]  In the 1900s when the NY courts said that using a person’s image in advertising was a crime, no one had any doubt what an ad was. 

 

Q: Alvarez: 1A will protect lies unless there’s a pecuniary motive.

 

Piety: Why is advertising to children ok? Adults can protect themselves, but can kids?

 

Kurnit: yes, though it’s a Q of what they can perceive. They’re savvier consumers than most adults. You can’t regulate the 1A down to what children can comprehend.  Favorite example: TV ad for doll: “doll doesn’t walk” disclaimer while showing the doll walking; directed at 2-3 year olds and thus disclaimer not effective.

 

Q: ROP statute was enacted 115 years ago b/c a young woman’s picture was put on a flour bag. The NYT led the push to get the statute enacted. Maybe that statute is unconstitutional on its face, and certainly as applied.  There have been about 70 lower court cases applying Reed, and only one involved a private civil law suit, and that’s the Hurt Locker case. Jordan v. Jewel: jury was outraged and gave Jordan $8.9 million, but Ed O’Bannon sought damages for a video game.  Q is whether ROP could form the basis for antitrust injury; this mess that is the ROP is something we need to talk about.  Reed doesn’t add a lot to the mix; also doesn’t know how that applies to fair use in ©.

 

Kurnit: for ROP, you must also require falsity to make it constitutional.  The notion that the little girl’s image on the flour is important enough to do violence to the 1A in the greater scheme of things is not sufficient.  §43(a)(1)(A) provides a very solid ROP claim when there’s falsity about endorsement, participation, etc.; that will work under the 1A b/c that’s false speech for commercial purposes designed to influence purchasing decision.  [But that presupposes a commercial/noncommercial distinction which he opposes, not to mention I wonder about materiality v. puffery status of picture of girl w/r/t consumer decisionmaking.] There is no longer emotional anguish connected w/being related to commerce. [Nice to know that’s universally true.]

 

Alger: Sarver case from 9^th Cir. applied strict scrutiny in ROP case; made it easier that it was a movie, noncommercial speech. But where do we draw those lines, and what about mixed/hybrid situations that come up online all the time. DCt cases have held, incorrectly, that advertising driven by content makes the content commercial as well. 

 

So what’s the next step, litigation-wise?

 

Q: Something so egregious that the Ct will have to take a look, particularly w/8 Justices on the Court.

 

Alger: perhaps cert in Sarver, explaining why Sarver is different from NFL game cases.

 

Q: O’Bannon is selling cars; justice to him requires a hard look.

 

Q: so he’s owed money because he’s not making any of his own?  Is your case against the networks, the NCAA, etc.?

 

Q: is a video game the same as a newspaper?

 

Q: The cases that come will be Ps’ attys who use FTC guidelines as a template to bring claims over whether or not there was sufficient disclosure of the sponsorship of content. Those are easy cases for Ps’ lawyers to construct.  [Given that most people in this space aren’t following the FTC guidelines, as we’ve heard, I wonder whether that’s actually true.]

 

Q: TOS might require arbitration.

 

Q: Ps’ attys will say they’re not binding.

 

Q: Cases like Sarver implicate matters of public concern/public figure—status of particular person. Can see SCt dodging the commercial speech issue and focusing on something they’re more comfortable with, like 9^th Circuit did.

Brand journalism: sponsored content/the 1A

Brand Journalism, Sponsored Content and the First Amendment

 

Moderator:   Scott Dailard, Cooley LLP

 

Mary K. Engle, Federal Trade Commission, Associate Director, Division of Advertising Practices: We’re going to proceed as if there is a commercial/noncommercial divide.  To hold otherwise would upend FTC, FDA, SEC, USDA—lots of regulations regulate speech. FTC: most based on idea that false and misleading commercial speech is not protected by the 1A.  RJR advertorial: “on cigarettes and science”—FTC elaborated on Bolger factors: does it promote demand for product/service; does it refer to specific product/service (whether or not brand specific); does it include info about product/service attributes such as price/quality/health effects. Means used to publish speech, including whether paid-for ads; speaker’s economic or commercial motivation.  Used this standard a few years ago for Pom Wonderful for claims made in media appearances by Pom executives.

 

Basic principle: advertising should be intelligible to consumers as advertising.  Business Guide on Native Advertising—applies to commercial speech; has examples of what is/isn’t commercial speech, as well as commercial speech that nonetheless doesn’t require disclosures (b/c it’s obviously advertising or it’s not material that it’s advertising).  Example: paid ad “20 Most Beautiful Places to Vacation,” by shoe company—b/c has nothing to do w/company’s products, and is just a branding exercise, this wouldn’t be commercial speech that needed to be identified as such.  Of course it would be presented by the company/have their logo—the company wants to be associated w/it, but doesn’t need to have the label as far as the FTC is concerned.  Journalistic ethics will also dictate disclosures, but FTC wasn’t going to intervene.

 

Likewise, when an ad is obviously an ad (shoe promotion w/slogan on a financial news website) it doesn’t need extra disclosures.

 

Video game virtual world: We assume video games are fully protected.  Consumers will understand in-game billboards as ads. To the extent that the ads are for actual products, consumers will attribute them to sponsoring advertisers and no separate disclosure is required, but sponsoring advertisers would be liable for any deceptive product claims.  Advertising content w/in nonadvertising content.  (As I said, like ads interleaved in the pages of a print magazine.)  What if they aren’t billboards in the game, but products are quests that you have to interact w/?  If the game conveys no objective claims about the products, that doesn’t require disclosure b/c whether it’s paid placement or video game artist’s artistic judgment is unlikely to be material to consumers.  Simple product placement is commercial speech, but doesn’t need to be labeled as such b/c its commercial nature is not material to consumers.

 

Deirdre Sullivan, The New York Times Company: If it comes from our creative agency studio, we disclose it.  Our disclosure has been iterated, and highly negotiated down to saturation of blue, and serifs on font.  We’re trying to create enough distinction.  Cole Haan paid post: CH doesn’t make ballet shoes; post was about dancers and their relationship to their shoes; we make clear it’s sponsored content, though we don’t use the word “ad”; business decision as much as a regulatory one.  We make no material claims, just interviews w/ballet dancers, so there’s a good argument we wouldn’t need to label by FTC standards.  Our subscriptions can’t decline b/c of our ad choices—need to keep both constituents happy. Journalists protect core of our product and keep subscription revenue up.  Newsroom felt that to do that we needed clear language at the bottom of every paid post.

 

Q: did they execute model releases?

 

Sullivan: Yep.  It’s a huge deal, and related to labeling everything that comes out of the studio.  Every paid post shouldn’t come to me; as a matter of course, all of our journalists—studio is populated by folks from editorial background—go through painful learning process about rights of publicity in their new profession.

 

Q: does that chill content production?

 

Sullivan: advertisers take care of some of that; most brands aren’t interested in coming close to controversial subject matters. Some advocacy groups are more interested in coming close.

 

Allison Lucas, BuzzFeed, General Counsel: Similar approach. Almost everything we do falls into the no material claims category, but we do put disclosures on everything b/c of journalistic ethics and b/c brands want to say they’re doing it.  Publishers do a lot of mobile; can also talk about social media and other platforms.  Home page: we use “promoted by.”  Story page: we put “brand publisher” for stories—brand had input into it.  If it were commercial speech, that might not be adequate for the FTC, but the content has nothing to do w/Shutterfly, it’s just what children say they want to give their fathers for Father’s Day.

 

Q: has FTC considered requiring disclosure when consideration is paid, like FCC does?

 

Engle: No, we don’t use that standard. We did take action against ADT when they hired spokespeople to promote a new security system on Today etc. and didn’t disclose they were working for ADT. That’s stealth advertising that should have been disclosed; FCC didn’t take action [presumably b/c the stations weren’t getting paid].  Even when you see the “promotional consideration provided” disclosure squished and fast in the end credits, we wouldn’t consider that adequate disclosure.

 

Almost all TV shows for kids are effectively selling the characters; doesn’t want to go there.

 

Piety: what are the reasons for doing native advertising? This has implications for whether disclosure works. Ad Age asked: why would advertisers want to mimic content when that’s so labor intensive and expensive and others can do it better?

 

Lucas: Clickthrough is just infinitely higher.  B/c people actually want to read and share it.  Buzzfeed never did banner ads.

 

Sullivan: ads are dying b/c of distraction, resistance, mobile; native advertising is a lucrative, thoughtful way to do it.  Advertisers like it b/c it resonates.  One advertiser didn’t want it to be off the table for an advertiser to win a Pulitzer.  Brand is just trying to tell you something about who they are.  Many advertisers have content studios in-house.

 

Piety: if you have to disclose it, it’s partly b/c the concern about low levels of credibility for advertising.  Maybe people don’t care so much about Orange is the New Black, but for Scientology sponsoring they do.  If skepticism increases, that’s a problem.

 

Sullivan: absolutely: there’s an integrity you think you can rely on from the NYT, and we have to be up front about the ad content—we think it’s good, but you should know its origin. Business decision as much as anything.

 

Q: does FTC’s content-sensitive approach reconcile w/Sorrell and Reed and right of publicity case law?

 

Rick Kurnit, Frankfurt Kurnit Klein + Selz PC: Maybe the message here is that the greatest chilling effect on free speech will be from ROP concerns. Those concerns come from the mess that is the ROP and the absence of commercial speech analysis for ROP.  That’s why I want to move away from Bolger.  My favorite false advertising case: NYT v. Sullivan.  An ad taken out by a corp. for the purpose of raising money.  Individual claimed that the context of what was described sufficiently identified him, anticipating White v. Samsung.  Unfortunately for him, he cast his claim as defamation rather than ROP. 

 

Sullivan was a commercial/paid media insertion. SCt understood that there was no such thing as advertising.  SCt understood that it needed to deal w/ ability of wealthy individuals to use tort law in Southern states to drive hated news organizations out of business b/c they hated them. Then the worst decision ever: Zacchini, which opened the floodgates.  9^th Cir. then embarrassed itself in Hoffman v. Capital Cities. Bounced around the circuit courts in search for some kind of coherence; Rogers v. Grimaldi is probably the best.  Cts are still trying to say that almost everything is commercial for ROP purposes.  Jordan v. Jewel Food Stores: idiotic for a court in 2014 to believe that there is still something to the notion that this (or anything) is an “ad.”  The ad was a free page in the publication for putting up racks to distribute Sports Illustration—not even a paid media insertion. “Ad” is created by SI + Jewel.  [I don’t understand why he thinks Rogers is good but there is no such thing as an “ad.”  Maybe he means artistic relevance should apply to everything, leaving zero space for a ROP claim?  I could actually go for that.]

 

Gov’t regulation should be of false or deceptive content material to a consumer purchasing decision.  Commercial speech regulation is dependent on deception. Fear that people would make bad decisions if given truthful information is insufficient; shouldn’t use truthful info to define something as advertising.  Reed suggests that gov’t shouldn’t be regulating based on who the speaker is or what the nature of the speech is advertising. [So, no FDA then?]  FTC policy statement is all about protecting consumers against deception, and he doesn’t think anyone will have a problem recognizing that this benefits all commerce, including legit publications.  One departure: FTC embraced the notion that it could regulate not just the integrity of the content (brand influence, false claims) but also the publisher’s effort to distinguish themselves by maintaining value of their curation; should not have required disclosure for curation.  Chilling effect of burdening speech bears on the question of whether FTC’s effort to provide consumers w/ a heads-up is ok; agrees that people would like to know more about the content, but it’s virtually impossible to give consumers all the relevant info about the author and what their biases are. So it’s always only partial information [and thus I take it disclosure is unjustified].  While it would be nice to know when the NYT is not pure editorial speech, it never is.

 

If disclosure is limited only to when there are claims about the product or service, then maybe that’s ok.  Then all the brand content doesn’t need to be labeled as ads.  Right now, people are still using labels disfavored by FTC; hard to get clients to be the first one to accept a change.  FTC policy statement in support of requiring disclosure that they’re moving from editorial to brands is defended based on the precedent of the misleading door-opener. But a high-powered salesman in your living room is more deserving of regulation than a click where you only see it’s advertising once you’ve landed on the page.

 

Engle: what about a spam email? CAN-SPAM says ad has to be labeled as such.

 

Kurnit: Consumers like it, but questions whether it holds up to 1A scrutiny. Should not be treated as ad even if topic/interest is related to brand if it doesn’t make claims about the brand. Chasm between what consumers are engaged w/online—celebrities, excitement, Gawker—and what you do in advertising; this runs a risk of driving the good players out of business and leaving us w/just the Darknet where the FTC can’t ID the source of content.

 

Q: what’s the gap b/t your approach and Engle’s?

 

Kurnit: the labeling that you’re about to click on a brand’s site.  If that site is mix of editorial and selling, I shouldn’t have to warn people away.  Right now, there’s a disconnect that I don’t need to label the ad b/c it makes no claims but I do need to label the website.

 

Engle: that’s a misinterpretation.

 

Q: Reed?

 

Engle: Reed isn’t a commercial speech case; we’re looking at Zauderer in commercial speech.  You could question whether we’ve made the right choice about what’s misleading; we’d have to defend that line, but we do contend it’s misleading if it’s not identifiable as an ad.

 

Q: Reed is a billboard advertising case, though. [Um.]

 

Engle: subsequent cases have distinguished commercial speech. Can’t imagine SCt would overturn 40 years of doctrine w/o mentioning Central Hudson; even Sorrell says it isn’t talking about false/misleading speech.

 

Q: Kurnit’s argument that there’s no such thing as advertising is that paying for space isn’t enough and that saying nice things about your brand isn’t enough (in an op-ed by the head of Exxon), but it sure seems like the combination ought to be enough.

 

Kurnit: Speech by someone with a motivation to influence you to purchase a product who is telling you something about the product likely to influence consumer decision—that’s the heart of commercial speech. But there’s trouble finding a simple label. Efforts to make a bright line, particularly in Bolger (ad format), are not helpful.  Bolger isn’t consistent w/NYT v. Sullivan which made clear that ads are within the 1A—a holding that’s gone ignored. [That’s b/c it’s a misdescription of the holding, which was that this issue ad, which was not commercial speech, was fully protected by the 1A, not that all ads were.]  FTC wants you to say “ad” but that’s like a mandated skull and crossbones; it’s a stay-away label.  FTC has told everyone that “presented by” and “powered by” and “brought to you by” are ok for editorial, but the world [to wit, advertisers] wants something between pure editorial and pure advertising, where brands get more “engagement” with the content. 

The definition of commercial speech

Commercial Speech:  The Definition Matters

Moderators:  Chris Beall, Levine Sullivan Koch & Schulz LLP and Bruce Johnson, Davis Wright Tremaine LLP

 

Steven G. Brody, Morgan, Lewis & Bockius LLP: We barely spoke about the definition of commercial speech. Why?  Is it b/c Reed has left us in the dust?  Or is it something more than that?  Background: gov’t usually loses if the speech is noncommercial, but if it’s commercial, courts are much more likely to allow regulation.  Central Hudson has become tougher over time, but still has a lot of leeway within it for judges to uphold restrictions.  Yet 40+ years since Va. Pharmacy, we still don’t know which communications fall within commercial speech category and which are fully protected noncommercial speech.

 

Treated as commercial: solicitation of employment on public speech; gripe websites; itemization of tax on medical forms.

 

Noncommercial: fortunetelling for a fee; advertising for a school; public ratings of corporate debt.

 

Keeps lawyers employed but doesn’t advance the rule of law. Focus on two inconsistent definitions of commercial speech: Bolger & Va. Pharmacy.  SCt has vacillated, but relied more heavily on the latter.  Va. Pharmacy: speech that does no more than propose a commercial transaction. “No more than” test.  Say that it serves the underlying purpose of the doctrine; receives less protection b/c inextricably tied to commercial transactions. So it’s logical that it should extend only to proposals of commercial transactions. Opponents say that’s too broad; advertisers can avoid speech restrictions by including discussions of public policy or unrelated images. Such ads “do more than” propose a transaction. 

 

Bolger: A message may be considered commercial speech by asking (1) is it in the form of an ad; (2) does it refer to specific product; (3) does speaker have economic motivation?  One alone isn’t enough, but a combination of the factors could be enough. Opponents argue that fundamental 1A values are risked by this definition. 

 

Two other definitions of note: (1) Central Hudson itself defines commercial speech as expression related solely to the economic interests of the speaker and its audience.  Close cousin of “no more than” test—keep an eye on it.  (2) Nike v. Kasky, Cal. SCt definition: consider the speaker, the intended audience, and the content of the message. Would include practically any statement of a corporation about itself.

 

Joshua M. King, Chief Legal Officer, Avvo, Inc.: Avvo was sued on launch, taking issue with profiles of lawyers.  Argued that rating was defamatory, and that the profiles were commercial speech, making us in violation of unfair trade practices. Court concluded that profiles weren’t commercial speech even though we had an economic motivation—akin to traditional form of publishing. It’s something that keeps coming back.  Two class actions allege that profiles are commercial speech violating attys’ publicity rights, b/c we’re monetizing w/advertising.  Cuts to core of how media works.  Commercial/noncommercial can be the difference b/t dismissal on the pleadings and a long, expensive fight.

 

Most of lawyers who use Avvo deal w/consumer issues, and are keenly aware of att’y advertising regs.  Bar regulations are so far afield from strict scrutiny!  Att’y ads were mostly banned until 1977; begrudging acceptance of 1A right of att’ys to advertise by state bars.  Many bar regulators aren’t even willing to engage w/commercial speech doctrine, having mostly kept pre-Bates rules (can’t give someone something of value for a recommendation etc., except for paying reasonable costs of advertising).  Bars are struggling w/social media, new forms of advertising: an att’ys own blog?  Pay per click ads?  Almost w/o exception, the bars don’t even pay attn to 1A, just apply their own rules as conservatively as possible.  Unfortunate b/c this is not changing despite Sorrell and Reed etc.  Advisory opinions from bars—Cal. is the only state that pays attn to 1A doctrine when coming up with advisory opinions. Doesn’t slow down lawyers who are skirting ethics anyway, but it does chill more cautious lawyers from engaging in social media or writing for publication.

 

Denise Esposito, Covington & Burling and Former Chief of Staff to the Commissioner of the U.S. Food and Drug Administration (FDA): Food & drug lawyer.  Overall question: whether a regulatory program can exist in the context of a 1A challenge if strict scrutiny applies to food & drug law.  Implications for tobacco, all medical products, and foods.  FDA is charged w/premarket review, determining whether a drug is safe and effective for intended use. Historically required 2 adequate clinical trials; expensive and extensive. Labeling is approved, which is supposed to explain what it means that the drug is safe & effective. Some believe that if you apply strict scrutiny, there will be no FDA; any pharmaco can do a study and say “my study shows it’s safe and effective.”  That raises the question: who is the arbiter of good science?  A judge can use Daubert to keep science out of the courtroom. FDA believes it’s the arbiter of safety and effectiveness.

 

Amarin case: off-label marketing.  FDA’s position was that off-label marketing was evidence that you intended it to be used for an off-label purpose, and thus mislabeling.  Caronia: court disagreed.  Off-label marketing restrictions have also been challenged: sending doctors reprints of studies that discussed unapproved indication.  FDA tried to change its policies, but Sorrell intervened; the FDA wasn’t paying much attention b/c it looked like a data sales case. But then the SCt said unconditionally that pharma ads were commercial speech subject to different levels of scrutiny depending on what opinion you’re looking at.

 

At the end of the day, if FDA can’t ban truthful and nonmisleading speech, what can it do? If it puts a drug on the market, can it do any regulation of the advertising as long as the company has evidence to back up its claim b/c FDA is no longer the arbiter of what’s truthful and nonmisleading? FDA says: we’re still the arbiter; proceed at your own risk. If we find your studies to be poorly designed/misleading of doctor or patient, we can still ban your speech.

 

Caronia: DoJ decided to test pure ban on off-label statements. There were a number of false statements as well; the rep said to doctors, on tape, “this drug is safer than aspirin,” but it’s the date rape drug.  DoJ didn’t pursue those claims b/c it wanted to test the waters on whether rep could say “we are studying the drug for X, Y, Z (unapproved) and our studies suggest that it works.”

 

Amarin: A company that promotes fish oil, which has a very good safety profile. The public health argument was a little weaker b/c drug was relatively safe, and the evidence was strong. Amarin had approval for product for lowering high triglycerides, and wanted next level of approval for mid-level triglycerides. FDA wanted a supplemental application, and Amarin did an adequate clinical trial whose design FDA approved, and the clinical endpoints showed what they wanted. FDA denied approval based on subsequent science suggesting there was no clinical benefits to lowering triglycerides in that group of patients b/c it didn’t seem to affect cardiac events. But Amarin said: we’re willing to say “FDA doesn’t agree w/us that this should be approved.” 

 

Amarin has threaded through the industry in unhealthy ways. Clients say “I’ve read Amarin, I can say anything as long as I do a 10-person study.”  Instead: be tempered, esp. w/public health interest. Live w/fact that advertising is commercial speech, but can’t say whatever they want based on any study, even w/disclaimers; FDA can’t say “you can’t say X until we review and approve.” All the action will be about what’s misleading, even if not false.  Caronia quote: sales rep says marketing is part of strategy to manipulate doctors. FDA plays a role here.  DTC ads to consumers are also a big deal, can be manipulated by complex data.

 

Rebecca Tushnet, Professor of Law, Georgetown Law School: I’m one of the people Professor Redish labeled pathological in the previous panel.  Just note about the First Amendment as the new Lochner: the example Redish gave of a city that bars its parking lot to cars with Trump bumper stickers is structurally identical to the FDCA regime: you can sell anything you want, but if you say it’s for diagnosing/treating a medical condition, then the FDCA has jurisdiction and you can’t sell it while making those representations.  You might think that the FDCA is better justified, but the point is that it’s really easy to make modern economic regulation look like speech regulation.

 

From my area, advertising law: Ford sucks said by GM is regulated the same way as Ford is great said by Ford.  And gov’t’s having a viewpoint, even if it were anticapitalist (which I strongly doubt) doesn’t mean that laws it enacts reflecting that viewpoint constitute viewpoint discrimination for 1A purposes.  If you want to call perjury laws and fraud laws viewpoint discrimination, you can do that—they do reflect the government’s view that those lies are particularly bad, and they do penalize speech that would be blameless if uttered on stage or to a spouse—but I think that concept muddies viewpoint discrimination into meaninglessness.

 

My preferred approach to commercial speech is that advocated by Justice Stevens: the distinction is government’s regulation of commercial transactions in order to protect the parties to the transaction should generally be treated like any economic regulation, even if the regulation operates by way of speech. Consumer Reports isn’t making the exact same speech as Hoover, and Hoover’s relationship to the transaction makes an important difference just as lawyer-client privilege makes an important difference to how one can and should regulate speech between lawyers and clients.  That means that the gov’t’s reason to regulate is important, though it is often possible to identify a consumer protection purpose for many regulations.  Stevens’ perspective also helps us identify what is commercial speech: when it is sufficiently associated with a relevant transaction.  

 

Notably, Kasky definition is for the purpose of applying false advertising laws. Full quote: (1) Because the messages in question were directed (a) by a commercial speaker (b) to a commercial audience,  (2) and because they made (c) representations of fact (d) about the speaker’s own business operations (e) for the purpose of promoting sales of its products,

(3) we conclude that these messages are commercial speech (f) for purposes of applying state laws barring false and misleading commercial messages.

 [Reed is unsustainable: I too find it notable that Scalia’s own opinion listed as ok some clearly content-based restrictions that he didn’t even bother to correct in response to the concurrences pointing that out. I do agree that watering down of strict scrutiny is one likely result, as well as invalidating very desirable regulations—worst of both worlds.]

 

Outside the Supreme Court, the distinction between commercial and noncommercial speech remains vital on a day to day basis.  Lanham Act: Critics v. competitors—commercial speech provides a dividing line b/t defamation law and false advertising law, which is strict liability for very good historical and theoretical reasons.  Also need to warn media lawyers specifically, who think that Sorrell and Reed are great news: be careful what you wish for.  Worse w/o the doctrine: Second Circuit: can infringe TM by content of expressive work; right of publicity cases—recent 9^th Circuit case applying Reed to strike down right of publicity as applied to noncommercial works like movies, but what if you can’t make that distinction.

 

Q: Microsoft just bought LinkedIn: how much do developments in social media bear on what’s commercial speech.  E.g., what is a like on Facebook—commercial speech?

 

Brody: Social media is good b/c combines commercial and noncommercial speech. Buzz marketing, stealth marketing, blogs—very hard to pull them apart. Inextricably intertwined doctrine: 9^th Cir. supports that.

 

King: We see a lot of bar regulators who think any use of social media is subject to att’y advertising rules: can do it, but you must retain copies for years, use disclaimers, etc.  I always tell att’ys that you shouldn’t be marketing on social media b/c people don’t want that. You should just be having a conversation.  Test is still maddeningly unclear.

 

Esposito: FDA’s world, warning letters are one enforcement mechanism.  Interesting social media warning letters, including Kim Kardashian’s Instagram.  But when does she stop being a paid spokesperson?  Social media: FDA requires fair balance, which means you need to talk about risks as well as benefits.

 

RT: Social media offer new methods for manipulation: called “stealth” marketing for a reason—that’s the advertiser’s own paternalistic assumption that though you would ignore marketing if you knew it was marketing, you’ll be happy to receive the information if you don’t know.  Another example: my competitor has people posing on social media as disappointed customers.

 

Q: are video games commercial speech?

 

Brody: No. Art/game.

 

RT: Right now, it doesn’t matter for the ROP. FTC standard: if there’s a paid-for factual representation by the seller, then substantiation required just for that; doesn’t allow FTC to regulate any other aspect of the game.

 

Q: don’t assume that all media lawyers welcome Reed.  Instead a consensus that a tight definition of commercial speech from SCt would solve a lot of problems.

 

Beall: uncertainty of what constitutes commercial speech allows collateral effects of either watering down strict scrutiny or deterring speech.  Rogers v. Grimaldi rule depends on commercial/noncommercial divide. The advertising of the expressive work can then use name/likeness and is not actionable appropriation of celebrity name. The problem is what is actually the commercial part of the speech?

 

Piety: guidelines on native advertising?

 

Beall: Reed and questions of imposing gov’t regulation on the basis of content is deeply problematic for FTC regulations; FTC is all about regulating the content of commercial speech.

 

Esposito: Breyer’s Sorrell dissent discusses this: if you have a regulatory system, it will “discriminate” based on content & speaker. Definition is less important than pragmatics.

 

Brody: Reed goes toward enhanced commercial speech protection, but Zauderer and its progeny moves in another direction.

 

Johnson: Zauderer plays a role in FDA b/c of compelled speech.

 

Esposito: FDA has tried to force graphic warnings on tobacco label; doesn’t happen in drug world, where companies often want tort protection by using disclaimers.

 

King: Lawyers love disclaimers, even though people don’t read them.  Bars love to come up with disclaimer requirements and that’s under litigation now—they should only get reasonable basis if necessary to cure deceptive speech, but other courts take position that

 

Q: Derogatory statements based on social network from competitor who pretends to be dissatisfied consumer.  Why wouldn’t defamation take care of that?

 

RT: B/c it might not be defamatory.  “The technician was rude and I felt uncomfortable”—even though that was totally false, falsity isn’t enough unless it’s defamatory, under defamation law as opposed to false advertising law.

The commercial/noncommercial boundary

The Shifting Boundaries Between Commercial & Non-Commercial Speech

Moderator:  Vince Blasi, Corliss Lamont Professor of Civil Liberties, Columbia Law School

 

Tamara Piety, Phyllis Hurley Frey Professor of Law, University of Tulsa College of Law: Book, Brandishing the First Amendment.  Different origin stories, one presented by Kozinski and Banner (minority position)—that origin story is that commercial speech was always protected, then unaccountably removed in 1942, the Valentine case involving a flyer advertising a submarine tour.  The more common understanding of where the doctrine came from was 1976 decision in Va. Pharmacy, price advertising for pharmaceuticals.  Wasn’t really clear from Va. Pharmacy or Central Hudson etc. what commercial speech was—a bit of “I know it when I see it.” Belotti, not a commercial speech case, asked whether corporations had speech rights, but Ct instead asked whether this was the type of speech that’s traditionally been protected: answer there was yes.  That characterization of corporation as valuable speaker and of listener’s interests in receiving the speech regardless of source came back to commercial speech.

 

Va. Pharmacy did something interesting w/truth, fleshed out by Central Hudson.  Lawful, truthful, nonmisleading—then it got relatively strong protection, requiring substantial gov’t interest advanced by regulation, w/o unreasonable interference w/1A rights. Truth, then, is what gives commercial speech coverage.  But truth is precisely what we worry about the gov’t testing in the political sphere!

 

However, SCt is interpreting this test as closer to strict scrutiny than intermediate scrutiny over time. Compared to rational basis, the obverse of strict scrutiny, for economic regulation.  We’ve also seen articulation of content neutrality and idea of speaker discrimination in commercial speech context in ways that give rise to Qs about whether or not this is a distinctive area.  If so, then the regulatory state like the FDA and FTC are broadly under threat.  One example: Daubert distinguishes between types of testimony that are allowed; is that gov’t discrimination based on the content of speech?  Securities regulation, campaign finance, professional speech of doctors, occupational licensing.

 

Martin Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University School of Law: Underlying theory of commercial speech protection. Describing his own scholarly saga.   He invented constitutional protection for commercial speech.  His first article was the first article to suggest that commercial speech deserved significant constitutional protection; not well received at Harvard where he wrote it!  Began using as a foil Meiklejohn, whose 1A theory protected only political speech. Premise: important actor under the 1A is not the speaker but the listener, exercising self-gov’t, who needs info/opinions to make self-governing choices. Redish said: let me stipulate to that for purposes of argument; commercial speech then facilitates self-government, not in collective sense where individual just has one vote, but in private self-gov’t sense where individual has 100% control of his/her life—what car to buy, what house to buy, what TV to buy—all central to self-realization.  [Of course, the individual doesn’t have 100% control over any of these; she is hostage to what’s on the market, unless she has the power of eminent domain.]

 

SCt then defined commercial speech as proposing a commercial transaction—Ralph Nader gets full 1A protection for criticizing the Corvair, but Chevy doesn’t get protection when responding (pre-Va. Pharmacy).  One side of a debate gets protection, the other doesn’t.  Consumer Reports gets full 1A protection for saying Hoover is the best vacuum, but when Hoover quotes that it doesn’t b/c they’re proposing a commercial transaction—exact same speech to exact same people, burdened separately b/c of speaker’s motivation. In no other area of law does speaker’s self-interest reduce 1A protection.  Anti-tax groups argue against taxes = self-interest. Unions pushing increased tariffs = personal self-interest. Civil rights protestors = self-interest. You may like that self-interest and not commercial self-interest, but that’s not an appropriate basis of distinction. To reduce protection is to insert anti-capitalist undertone to the 1A.  [Or it’s about regulating commercial transactions.]

 

Rehnquist didn’t like any free speech protection, so I disqualify him from consideration.  [Blasi asks: isn’t that disqualifying him based on motivation.]  The number of scholars who want to give no protection to commercial speech while protecting others is Twilight Zone viewpoint regulation—drawing an exception for no reason other than that you don’t like the promotion of that thing.  Steve Shiffrin’s response: kids today are thinking about nothing but materialism; these aren’t the values we should instill.  Proves Redish’s point. It’s not b/c commercial speech isn’t as valuable, it’s b/c they don’t like the message being sent. Serious pathology. Irony: SCt in Sorrell recognized that: otherwise unjustified distinctions in regulating speakers is invidious viewpoint regulation, but hasn’t realized that, by that standard, commercial speech doctrine violates the 1A.

 

Floyd Abrams, Partner, Cahill Gordon & Reindel LLP: Two big cases: until 2011, whatever else the SCt was saying was that commercial speech was different, and to be treated differently.  Moved in Sorrell to unified treatment.  Heightened scrutiny, referring to consumer’s likely greater interest in commercial information than in politics.  Dissent said: this means everything commercial gets heightened scrutiny, which we’ve never done before.  FDA’s regulation of promotion of off-label uses, for example.

 

Unclear how far the Court had gone, and remains unclear; Court hasn’t taken a commercial speech case since then, though it has had Reed v. City of Gilbert. Majority: says that any content discrimination triggers strict scrutiny, citing among other things Sorrell, which would indicate end of commercial speech doctrine; Breyer’s concurrence objected strongly to that.  Question remaining: did they mean it?  SEC, FEC, it’s all content regulation—speech about airplanes!  More likely: strict scrutiny would be watered down to sustain the regulatory state.  In the securities area, he thinks that when stockholder votes on management, b/c of Reed, it’s much more likely than ever before that normal 1A rules will be applied, but will they be applied literally?  Last week, 3d Cir. used the phrase “drastically rewritten” 1A jurisprudence, reversing itself and holding a statute unconstitutional w/r/t porn regulations. 7^th Cir. and 1^st also reversed themselves in cases about bars on panhandling.  W/o proof that there’d been panhandling in garages, couldn’t ban panhandling in garages.

 

Blasi: Scalia was at pains to call himself a textualist.  Should we think about commercial speech any differently b/c it says “Congress shall make no law abridging the freedom of speech,” rather than “speech”?

 

Piety: that’s also an argument for a more robust press clause, which has been subsumed into speech. Not sure how this cuts b/c she thinks we don’t want to destabilize an entire edifice of criminal law, libel law. Can’t take it so literally as to mean “any speech.”  But that then takes us back to Scalia’s resort to original meaning.  What was the Framers’ idea of “freedom of speech”?

 

Abrams: Scalia said “the” was the key word: takes us back to English law before the adoption of the Bill of Rights, contrary to what Justice Black and others said, which was that the whole purpose of the Bill of Rights was to escape from/move ahead of the old England.

 

Redish: the most textualism can do for you is fight back against the idea that there was absolute protection for speech, which is infeasible.  “The freedom” doesn’t say you can never regulate speech, if you have a compelling interest.  Beyond that, textualism doesn’t tell you very much, and nothing about commercial speech.  If it did, it would be that there’s no rational basis for distinguishing b/t commercial and noncommercial speech.

 

Piety: one canon of construction: you should not interpret a statute so that some part is surplusage. There’s also a commerce clause.  When we talk about freedom of speech, we seem to have moved into a back and forth b/t theoretical, descriptive assessment and a legal assessment that departs from full descriptiveness. It’s true that, in gay marriage for example, there’s an expressive aspect to running a business.  But that may not be a very good principle to apply to the regulation of commerce if we are to regulate commerce at all. If all businesses are expressive then it seems like what you have is a 1A that swallows the Commerce Clause. And New Deal aside, we are talking about putting a constitutional cloud on an enormous number of statutes; that seems ill-advised. Reed has created doctrinal uncertainty.

 

Redish: Straw man; you can use O’Brien to separate expressive from nonexpressive. Your belief that African-Americans shouldn’t eat in your restaurant doesn’t mean that you can keep African-Americans out. Operating the business itself is not the same as speech, which is why the Lochner analogy breaks down.  Vitally important to separate them out—regulating activity b/c of its communicative value and regulating b/c of its noncommunicative harms.

 

Abrams: we don’t advance the ball by reading “speech” in a way so broad as to include every use of words. Perjury is speech. Spying is speech. [Or at least data collection.]  There are words that all agree are categorically excepted out of “the freedom of speech” because we’ve always done it and the Framers must have meant that. We do need a bit of theory here.

 

Blasi: Redish has developed a very sophisticated and creative argument that many regulations of commercial advertising have an element of viewpoint discrimination.  What’s motivating the regulation is an ideological position.  Sorrell can be narrowly read to be about viewpoint discrimination: Vermont was taking a position on generic drugs and the like.  What Reed does is to conflate viewpoint regulation w/content-sensitive regulation. There was no viewpoint discrimination in Reed. 

 

I’ll go further: there’s not a judge I respect more than Kagan or a lawyer more than Abrams; both agree that Reed’s law didn’t pass the laugh test, but he disagrees. Those regulations were about duration and size of signs. The rationale for the distinctions was that signs directing people to a location don’t have to be big, and the smaller the better for clutter/aesthetics, b/c the potential audience is looking for them.  Political signs don’t need to stay up after election. For nonpolitical ideological self-expression, that’s the strongest case for thinking the sign needs to be both big and lasting. So that reflected sensible distinctions about which speech needs which freedoms.

 

Key: Reed treats content-sensitive regulation as viewpoint-discrimination, which is why it has such big potential implications.

 

Piety: selling stuff: is viewpoint-neutral. Not all of us would agree that Sorrell is about viewpoint.  As for O’Brien: where’s the speech in selling data?  Not an apparent connection to speech; the connection is to later use in marketing. Marketing as such is not a viewpoint, which goes back to her point about the Commerce Clause. 

 

Abrams: everyone has an economic interest in what they do or say on certain occasions.  Content-sensitive is a very soft, euphemistic way of saying “content distinction” or content-based.  Often viewpoint rooted even if hard to prove, and we don’t want to get into legislature’s motive.

 

Redish: if a city passes an ordinance saying that cars w/Trump bumper stickers can’t park in the city parking lot, parking spaces aren’t speech but that’s discrimination against someone b/c of her speech. Data mining isn’t speech, but there’s discrimination against speakers b/c of their views.  Viewpoint discrimination is not normally from the regulator, but from the court.  If the court defines commercial speech not by the substance of what’s being said but solely the commercial/noncommercial motivation of the speaker, that’s hostility to capitalist interest of trying to make money.  Speech about commercial products = would be a content-based regulation.  Exact same speech to same audience but differently regulated = covert viewpoint regulation.

 

Piety: note that businesses are supposedly always seeking to increase their profits, even with speech that doesn’t immediately seem to benefit it. But we need to think about what the rules of the commercial game are—antifraud laws are an important boundary; without this line b/t commercial and noncommercial, then you get Rehnquist’s concern: corporations may become more involved in politics, and indeed that happened.  Speech/act distinction is problematic.

 

Redish: overtheorized.

 

Q: City of Santa Monica decided to accept only ads that proposed commercial transactions on its buses.  Reason: precedent where Arab-Israeli conflict got played out on side of buses.  Everything said in 2d panel was turned on its head; I had to demonstrate that AIDSwalk was engaged in a commercial transaction in order to advertiser.  Led me to Kozinski’s viewpoint: overtheoreticalization leads us down bad roads.

 

Abrams: one of the few areas where American law provides less protection than available elsewhere. Canada ruled that buses could and were entitled to have political ads on them; legislature couldn’t prevent it.

 

Q: Alito’s concurrence in Reed wrote as if he were speaking for most of the bench when it said the Court wouldn’t be wiping out a whole series of regulations, including distinction b/t on-site signage and on-site signage—isn’t that content-based?  If that’s true, what happens without Scalia?

 

Abrams: Alito was trying to minimize the impact of the majority. True that the example Alito uses is inconsistent w/the holding.

 

Blasi: Lower courts since Reed have often found no content discrimination. If you’re going to make content discrimination so crucial, then there will be a struggle about what really counts as such. So far, the pattern of interpretation has had the greatest impact w/panhandling regulation.

 

Q: where will we/should we get limiting principles from about what the 1A will apply to?  Redish is saying that some things like employment discrimination are outside the scope of the 1A, but that’s not self-evident.

 

Abrams: Although I mock some of the Reed outrage, I also think it can’t mean what it seems to say. Two vulnerable points: What counts as content based?  What counts as strict scrutiny?  Last Term, there was a strict scrutiny case for judicial campaigning, where it was clear to Abrams that the dissenters had the better of the argument that, based on prior opinions, strict scrutiny hadn’t been satisfied.  Under the challenged rule: As long as the judge doesn’t make the solicitation herself, everything was ok—he’s skeptical of that. Court may be moving in direction of making strict scrutiny less fatal.  Not a complete upheaval of the regulatory state, but a number of sensitive areas—campaigns for shareholder voting sound like election campaigns.  For that to be subjected to the rigor of SEC regulation as it is now is dubious post-Reed, but he doesn’t think that sec. 11 of the 1933 Act will fall (false statements, even negligently made or good faith, create strict liability).

 

Blasi: Breyer emphasizes, both in Sorrell and in Reed, the quantitative dimension. He talks about regulatory state, but what about impact on 1A itself? Is the 1A a commitment that can be cheapened by overuse, disconnected from historic struggles and just commonly invoked? I see it every September; only in last 3-4 years have there been a flood of second-year students w/potential 1A notes, b/c in their law firms all of a sudden they’re thinking more about the 1A than ever before.  [I believe Blasi may have written something about this.]

 

Redish: I don’t believe there’s a need to draw on historic struggles. There’s nothing special about history.  Framers agreed that blasphemy wasn’t protected; flagburning was never even thought about.  [Ah, levels of generality.] The constitution evolves, as long as you’re not exceeding the outer limits of the text and have a coherent account.

 

Piety: Evidence, civil forfeiture—in both these areas, SCt precedent conflicts.  Her sense is that notwithstanding the invitation in Reed, the Court will continue trying to duck it. Worst case scenario: watering down strict scrutiny in areas we really want strict scrutiny. 

 

Abrams: One of the objections to protecting commercial speech was that it would cheapen the 1A.  Now one writes briefs in political speech cases, hoping to get as much protection.

 

Redish: Blasi has argued the pathological perspective before. Question-begging: if commercial speech is really fostering the same values, then it should get the same protection. So we’re back to defining value. Also, there’s a danger of reverse dilution, given pathology of regulation of truthful speech based on paternalistic notion that people can’t decide for themselves; gov’t has to intervene to make choices for them. If we accept that basic rationale, it should apply to politics. If people are sheep, they are sheep. [This actually doesn’t track with what we know about consumers as consumers—they’re vulnerable in certain contexts, and not in others; it’s perfectly possible to be a sheep as to topic X and a scholar as to topic Y.  And as a matter of prophylactic constitutional law, deciding that the gov’t is really bad in ruling in its own direct favor seems quite reasonable.]

 

Piety: we often want gov’t to make our lives easier. Trial and error isn’t great for what’s poisonous.  The paternalism argument is often when the consumer is saying “I don’t want to receive robocalls” and goes to the gov’t and the gov’t creates the Do Not Call list.  Response: if you knew what was good for you, you’d receive these messages.  Same argument was made in Sorrell. Yet we know that the cognitive load from a deluge of messages is a big deal.  Rational response may be to ask the gov’t to help you implement your own choice.  It may be that we distrust the gov’t most in the political sphere. 

 

Redish: If you understand public choice, that’s wrong.