It Depends on What the Meaning of "False" is: Falsity and Misleadingness in Commercial Speech Doctrine, a new article by Rebecca Tushnet to be published in an upcoming issue of the Loyola of Los Angeles Law Review, has just been posted to SSRN.
While scholarship regarding the Supreme Court's noncommercial speech doctrine has often focused on the level of protection for truthful, nonmisleading commercial speech, scholars have paid little attention to the exclusion of false or misleading commercial speech from all First Amendment protection. Examining the underpinnings of the false and misleading speech exclusion illuminates the practical difficulties that abolishing the commercial speech doctrine would pose. Through a series of fact patterns in trademark and false advertising cases, this piece demonstrates that defining what is false or misleading is often debatable. If commercial speech were given First Amendment protection, consumer protection and First Amendment protection would be at odds. Rebutting the idea that constitutionally protected commercial speech could effectively address consumer abuses through fraud statues and would not be offensive to the First Amendment, the piece explains that subjecting commercial speech to First Amendment scrutiny would almost completely contract the scope of false advertising law and erode consumer protection. The piece concludes that while excluding commercial speech from constitutional protection has real costs, we are better off in a system that regulates false and misleading commercial speech without heightened First Amendment scrutiny.