Category Archives: First Amendment

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Supreme Court Strikes Lanham Act’s Disparagement Clause; Near-Term Effect Uncertain in Light of Other Viewpoint Based Prohibitions

The U.S. Supreme Court ruled unanimously on June 19, 2017 that the Lanham Act’s disparagement clause prohibiting federal registration of “disparaging” trademarks unconstitutionally limits free speech in a case involving a band named “The Slants.” The near-term effect on trademark applicants, however, is in question due to other viewpoint based prohibitions that were not ruled … Continue Reading

Supreme Court Rules New York Law Prohibiting Disclosure of Surcharges Regulates Speech, Sends Case to Second Circuit for First Amendment Analysis

On March 29, 2017 the Supreme Court of the United States held that a New York law prohibiting retailers from disclosing credit card surcharges, while allowing discounts for cash purchases (effectively eliminating the surcharge), regulates speech and not just conduct. The Court, however, passed on evaluating whether the statute violates the First Amendment. Instead, the … Continue Reading

The Saga of the Forbidden Fruit Part III

The long running saga of the FTC versus POM Wonderful took a major turn today as the D.C. Circuit affirmed in part and reversed in part the FTC’s Order that POM had made deceptive claims about its pomegranate juice products.   In 2010, the FTC sued POM alleging it had made false and unsubstantiated claims about the … Continue Reading

Cigarette Advertising Regulations Go Up in Smoke

On August 24, 2012, the D.C. Circuit struck down regulations promulgated by the FDA under the Family Smoking Prevention and Tobacco Control Act (the “Act”), which would have required cigarette packages to bear one of nine graphic images depicting the negative health consequences of smoking.  Because the D.C. Circuit’s decision appears to be in conflict … Continue Reading

Lying Is Protected Speech: What Does This Mean For Advertisers?

Did you hear the news?  The Supreme Court has ruled that lies have First Amendment protection. I’m not just talking about little white lies, or half-truths, or artful omissions – I’m talking about great big whoppers, like claiming at a public meeting that you were awarded the Congressional Medal of Honor when you were never … Continue Reading

British Religious Group Doesn’t Stand a Prayer Against the ASA

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 … … Continue Reading
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