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Commercial Speech

Hybrid Speech

Filed an amicus brief, with The Thomas Jefferson Center for the Protection of Free Expression and the Marion B. Brechner First Amendment Project, before the U.S. Supreme Court in Hunter v. Virginia State Bar.  The brief supports a petition for a writ of certiorari.  The case, involving an attorney's blog that may contain both commercial and noncommercial speech, presents the Court with an opportunity to clarify the meaning of "inextricably intertwined" hybrid speech, and to clarify widespread confusion over the commercial speech doctrine.  [2013]  Click here to view brief.

Campaign Finance Reform

Filed comments along with the Thomas Jefferson Center to the Federal Election Commission, commenting on the FEC's proposed rules to implement the U.S. Supreme Court's ruling in two Wisconsin Right to Life, Inc. v. FEC cases (2006 and 2007). The cases challenged restrictions on campaign advertising contained in the Bipartisan Campaign Reform Act of 2002. The comments urged the FEC to remove or reduce reporting requirements, and commended the FEC for its proposal to establish a safe harbor for commercial and business advertisements. [2007] Click here to view issue paper...

Prescription Drug Advertising

Released a "Policy Views" issue paper by Robert Corn-Revere, Esq. raising questions about the constitutional validity of a Senate bill provision that would impose a two-year ban on ads for new prescription drugs. The paper noted that the proposed ad ban was a "classic prior restraint" unlikely to withstand judicial review, and further noted that the ban was not narrowly tailored and thus would not be an acceptable restriction on commercial speech. [2007] Click here for issue paper...

Beef Checkoff Program

Joined with the Thomas Jefferson Center and other amici in a brief before the U.S. Supreme Court urging the Court to strike down mandatory assessments on beef producers for generic advertising. The brief argued that the beef checkoff program amounted to government- compelled speech and thus infringed on beef producers' First Amendment rights. The brief noted that the beef program was remarkably similar to a generic advertising program for mushrooms that the Court had previously ruled unconstitutional. [2004] Click here for comments...

Nike v. Kasky

Filed an amicus brief before the U.S. Supreme Court with the Thomas Jefferson Center, arguing that a corporation's speech about its labor practices is noncommercial speech subject to full First Amendment protection. The brief took issue with a California Supreme Court decision that such speech by Nike was commercial, even though it was not in the form of advertising and was not promoting any particular product for sale. The California ruling would essentially subject all corporate speech to a lower level of First Amendment protection. [2003]

FDA and the First Amendment

Filed comments with the Food and Drug Administration in response to the agency's request for comment on First Amendment issues. The comments pointed out that, until very recently, the FDA acted as if it were exempt from the First Amendment in its regulation of speech about pharmaceutical products. The comments urged the FDA to adhere to established administrative and statutory rulemaking procedures and to stop its policy of "regulation by intimidation" through informal means. [2002] Click here to view document...

Greater New Orleans Broadcasting Association, Inc. v. U.S.

Filed an amicus brief (with other amici) before the U.S. Supreme Court, arguing that a federal ban on broadcast ads for gambling casinos is unconstitutional. The brief argued that the federal government did not assert a substantial interest in banning such ads and failed to prove that the harms it sought to address were legitimate and real. The brief also noted that the government failed to demonstrate that the ad ban directly and materially advanced any purported interest, and also failed to prove that the ban was narrowly tailored. The brief urged the Court to reaffirm its strong commitment to commercial speech protection. [1999]

Reno v. American Civil Liberties Union

Filed an amicus brief before the U.S. Supreme Court with the Association of National Advertisers arguing that the Communications Decency Act of 1996 is a content-based restriction on fully protected speech and is unconstitutional because the government has not satisfied the strict scrutiny afforded such speech. The brief argued that the government may not transform a content-based restriction on speech into a content-neutral restriction by claiming to be protecting children. Regardless of the outcome, the brief cautions that the opinion must be worded carefully to prevent any negative spillover effect on the protection of commercial speech. [1997]

Anheuser-Busch v. Baltimore

Filed an amicus brief in the Fourth Circuit, in company with other amici, in opposition to Baltimore's ban on billboard advertising of alcohol beverages. The Media Institute argued that the lower court's faulty application of controlling Supreme Court decisions and its unquestioning deference to legislative judgments, followed to its logical conclusion, would undermine all protection for commercial speech. [1994] Filed an amicus brief in the Fourth Circuit, in company with The Thomas Jefferson Center for the Protection of Free Expression, arguing that the Baltimore ordinance should be invalidated following the Supreme Court ruling in 44 Liquormart. [1996]

Flint, Mich., Billboard Ban

Submitted comments to the Flint city council, mayor, and city attorney opposing a proposed ban on alcohol and tobacco billboards within 1,000 feet of schools and churches. The proposal was unconstitutional since it sought to prohibit speech strictly on the basis of content, the Institute said. The city council rejected the measure in favor of the local ad industry's current 500-foot voluntary ban. [1996]

Direct-to-Consumer Promotion of Prescription Drugs

Filed comments with the FDA concerning agency control of prescription drug advertising. The comments argued that the FDA's policing of prescription drug advertising is, and has been, constitutionally questionable, and otherwise futile and of no avail. The comments urged the FDA to abandon its current controls in favor of allowing existing distribution mechanisms to secure all the consumer protection that the government interest may constitutionally demand. [1995]

Regulations Restricting the Sale of Cigarettes and Smokeless Tobacco Products To Protect Children and Adolescents

Filed comments with the FDA concerning proposals to diminish the allure of tobacco for children. The comments argued that the FDA's proposals are constitutionally sticky and absurdly mischievous, and suggested how the agency might otherwise cope legally and less intrusively with keeping tobacco products out of the hands of children. [1995]

Texans Against Censorship, Inc. v. Texas

Filed an amicus brief, in company with other amici, in U.S. District court in opposition to the Texas State Bar's attorney advertising rules. The Media Institute argued that in a free society, individuals have a right to uncensored, accurate information needed to freely make lawful choices -- economic, social and political. Government may not, however, the Institute concluded, purport to leave a choice free but sabotage its exercise by censoring truthful information needed to make it. The Court held that three of the bar rules violate the First Amendment. [1995]

Florida Bar v. McHenry

Filed an amicus brief in the U.S. Supreme Court, in company with other amici, in opposition to a rule that prohibits members of the Florida bar from writing to potential clients concerning an action for personal injury or wrongful death within the thirty days following the accident. The Institute argued that speech bans aimed at protecting 'vulnerable' audiences pose a special danger to the First Amendment because it opens the door for a paternalistic government to find many individuals in our victim culture to 'protect' with censorship. [1994]

Ladue v. Gilleo

Filed an amicus brief in the Supreme Court, in company with other amici, in opposition to a city ordinance restricting residential signs in the City of Ladue. [1993] The Court held that the ordinance violated the homeowner's right to free speech by foreclosing an entire medium of expression. [1994]

FCC v. Edge Broadcasting Company

Filed an amicus brief in the Supreme Court, in company with other amici, arguing that a North Carolina radio station had a constitutional right to broadcast Virginia lottery advertisements. [1993] The Court held that the law was constitutional. [1994]

City of Cincinnati v. Discovery Network

Filed an amicus brief in the Supreme Court, in company with other amici, arguing that truthful, non-misleading commercial messages are entitled to the full protection of the First Amendment. [1992] The Supreme Court ruled that the city violated the First Amendment rights of the commercial speech providers by forbidding them to place news racks on public property. [1993]

ANA v. Lungren

Filed an amicus brief in U.S. District Court arguing that California's 'Green Statute' violated the free speech rights of plaintiff corporations by restricting their use of certain words that accurately and truthfully described the environmental attributes of their products. [1992] Filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit. [1993] Both courts held that the restrictions were constitutional.