"Misleading advertisements" about protected speech

[Mark Tushnet]

My computer swallowed a comment on these questions that I'd drafted, so here goes another version.  Consider these three cases:  (1)  An advertisement -- the box cover of a DVD -- that says, "Bambi," and on the inside is (a) a DVD of some R-rated movie, or (b) a highly degraded DVD of Bambi.  (2)  The DVD box cover says, "Goldilocks and the Three Bears, updated for a modern audience," with cover art showing Disney-like characters (non-infringing, though), and inside is a sexually explicit but non-obscene DVD about a young girl's encounters with -- you can fill in the rest.  (3)  "Ghost Tours of Philadelphia," where what's delivered are tours where the guide describes ghost sightings at various venues.  I've tried to construct these so that (1) is "false," (2) is "misleading, and (3) is clearly constitutionally protected even if you don't believe in ghosts (although I actually do wonder about the result if you believe in ghosts but don't believe that ghosts actually have been sighted at the tour venues).

Again, my general point is that the "exception" for "false and misleading advertising" is quite subversive, as Eugene's comment suggests as well.  But the "exception" seems quite well-entrenched, and probably is indispensable in any regime that provides some degree of constitutional protection for commercial speech.  So, what to do?

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)



-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Mon 7/7/2008 4:45 PM
To: conlawprof at lists.ucla.edu
Subject: "Misleading advertisements" about protected speech
 
	I agree with Mark that this is a very interesting and important
topic, so let me flesh it out more broadly:  When may the government
restrict for-pay speech -- books, movies, newspapers, lectures in
private universities, lectures more broadly, or lectures by tour guides
-- on the grounds that the speech is "misleading" and therefore the
advertisement that promotes the speech as accurate, worthwhile, helpful,
etc. is misleading?  That is surely important for a wide range of
speech, ranging from health advice to financial advice to political
commentary and criticism.  There are a few lower court cases on the
subject, but I'm wondering what people thought the rule ought to be.
The one thing I'm confident of is that it's hard to articulate a
principled rule that is somehow limited to historical tours but wouldn't
also be logically extendable to a wide range of other speech.

	Eugene


Mark Tushnet writes:

	I haven't been able to open the web-page with the ordinance, so
the following may be a misplaced question:  What about regulation of
false and misleading advertisements?  I have in mind the following:  An
enterprise advertises itself as offering "Historical Tour of
Philadelphia's Heritage" (without further elaboration), and the tour
guides recite the plot of one of the Nicholas Cage "National Treasure"
movies as historical fact.  Can the enterprise be penalized in some way
for false advertising?  (Is it different from the advertisements at
issue in Friedman v. Rogers?)  If it can be penalized, how far from the
truth can the guides stray before advertising their tours as
"historical" shifts from being misleading to being "good enough for the
First Amendment"?
	
	My own view, for what it's worth, is that the "false and
misleading" "exception" to the rules regarding commercial advertising is
(a) extremely widely accepted, (b) probably a very good idea, and (c)
deeply subversive of standard accounts of the basic rules (particularly
the anti-paternalism account, but pretty much all of them).  But that's
another story -- with any luck I'll be writing about this and related
issues over the next couple of years.
	

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