Healing on the Streets (HOTS) recently went up against the ASA, a British self-regulatory advertising watchdog and lost, in a case that demonstrates the difference having a First Amendment makes. HOTS promoted a leaflet on its website that said:
“NEED HEALING? GOD CAN HEAL TODAY! Do you suffer from Back Pain, Arthritis, MS, Addiction … Ulcers, Depression, Allergies, Fibromyalgia, Asthma, Paralysis, Crippling Disease, Phobias, Sleeping disorders or any other sickness? We’d love to pray for your healing right now! We’re Christian from churches in Bath and we pray in the name of Jesus. We believe that God loves you and can heal you from any sickness”
The site also featured testimonials from five individuals who claimed they had been healed through prayer
The ASA found that the claims of healing could not be substantiated and that the ads were also socially irresponsible in that they encouraged false hope and discouraged sick individuals from seeking conventional medical treatment. The ASA rejected an offer by HOTS to further clarify that they believed that any healing came from God.
Thanks to the First Amendment religious organizations in the United States need not rush out and hire advertising lawyers. The FTC only has jurisdiction over commercial speech. Although that clearly does not encompass speech by religious organizations the line between commercial and noncommercial speech is not always clear. Many years ago RJ Reynolds lost an argument before the FTC that its discussion of a scientific study on smoking and health was noncommercial. In the Nike case, Nike used press releases and letters to respond to critics who alleged their products were made in sweatshop conditions. A closely divided California Supreme Court decided that Nike’s speech was commercial speech. Whether corporate image speech on green marketing is protected by the First Amendment has been the subject of at least one law review article and an FTC Commissioner has expressed the view that corporate image ads are potentially commercial speech, subject to Section 5. Massachusetts has gone further, bringing an enforcement action against a misleading corporate “green claim.” (company’s mission is to “look after our people [and] to be good stewards of the planet . . . ” )
At the same time, the FTC has tried to encourage voluntary regulation on issues such as ratings for entertainment products and marketing of foods to children because of First Amendment concerns.
So don’t look for claims of healing, salvation or forgiveness to disappear from the US anytime soon. In the UK, lookout, perhaps the ASA will go after politicians next for speech that is misleading and provides false hope . . . . Perhaps a prayer or two would be in order that they don’t.