Deceptive Commercial Speech and Advertising
Deceptive Commercial Speech and Advertising
According to the commercial speech doctrine, only deceptive speech that is considered commercial may be regulated. General deceptive speech is not commercial, may not be regulated. When deciding what may and may not be regulated, it is important to understand the subtle differences in what is considered commercial and non commercial speech. An analyzation of false advertising would give further understanding to the notion of commercial speech and how it may be degenerative to a society when untruthful.
Commercial Speech
According to the Supreme Court, the definition of commercial speech is a “combination of a core notion surrounded by a penumbral boundary defined on the basis of three characteristics” (Howard, 1991). This “core notion” of commercial speech is “speech which does ‘no more than propose a commercial transaction’” [1] Beyond this notion exists a body of commercial speech identified in the Bolger v. Youngs Drug Prods. Corp. 1983 case by whether the speech is as an advertisement, whether the speech refers to a specific product, or whether the speaker is economically motivated. [2] Although individually these characteristics are insufficient to establish speech as commercial, the combination of all three offers a strong argument for describing commercial speech.
Advertising
The Merriam-Webster dictionary lists an advertisement as something that is shown of presented to the public to help sell a product or to make an announcement. In short advertising may be described as a public notice published in the press or broadcast over the air. Many societies receive a bulk of their daily information from advertisements selling physical products, attempting to sway opinions, and introducing new ideas. The increase in media technology has opened a doorway to deliver a constant stream of information including advertisements that may be biased or altogether misleading. Current social network sites allow users to “like”
According to the commercial speech doctrine, only deceptive speech that is considered commercial may be regulated. General deceptive speech is not commercial, may not be regulated. When deciding what may and may not be regulated, it is important to understand the subtle differences in what is considered commercial and non commercial speech. An analyzation of false advertising would give further understanding to the notion of commercial speech and how it may be degenerative to a society when untruthful.
Commercial Speech
According to the Supreme Court, the definition of commercial speech is a “combination of a core notion surrounded by a penumbral boundary defined on the basis of three characteristics” (Howard, 1991). This “core notion” of commercial speech is “speech which does ‘no more than propose a commercial transaction’” [1] Beyond this notion exists a body of commercial speech identified in the Bolger v. Youngs Drug Prods. Corp. 1983 case by whether the speech is as an advertisement, whether the speech refers to a specific product, or whether the speaker is economically motivated. [2] Although individually these characteristics are insufficient to establish speech as commercial, the combination of all three offers a strong argument for describing commercial speech.
Advertising
The Merriam-Webster dictionary lists an advertisement as something that is shown of presented to the public to help sell a product or to make an announcement. In short advertising may be described as a public notice published in the press or broadcast over the air. Many societies receive a bulk of their daily information from advertisements selling physical products, attempting to sway opinions, and introducing new ideas. The increase in media technology has opened a doorway to deliver a constant stream of information including advertisements that may be biased or altogether misleading. Current social network sites allow users to “like”
References: 1. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976) (quoting Pittsburgh Press Co. v. Pittsburgh Comm 'n on Human Relations, 413 U.S. 376, 385 (1973)). Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66-67 (1983). Howard, A. (1991). The constitutionality of deceptive speech regulations: Replacing the commercial speech doctrine. Case Western Reserve Law Review, 41(4), 1093. Retrieved from EBSCOhost. Merriam-Webster Online Dictionary:http://www.merriam-webster.com/dictionary/advertisements Pember, D. R., and Calvert, C. (2011). Mass media law. 17th ed. Boston, MA: McGraw-Hill. Russo, J., Metcalf, B.L., & Stephens, D. (1981). Identifying Misleading Advertising. Journal of Consumer Research, 8(2), 119-131. Retrieved from EBSCOhost.