Plopper Assignment: Chapter 9
Optional Middleton Assignment: Ch. 6 & 7
1. Most important thing to know:
You are responsible for what you write and the messages and communications you approve for dissemination.
The defense of "It was just my job" is NO defense.
2. Most important thing to do:
When you go to work for someone, whether as a member of a corporate team or as an individual practitioner, make an appointment with the company's attorney. (Either your company's attorney or the attorney serving the companies you represent.)
What to ask the corporate attorney:
1. What kinds of government regulations affect not just your work but the company's work? Its work is your work as far as liability goes.
2. What are the most common types of lawsuits brought against the company or companies like it? There will be state laws as well as federal to follow.
3. Subscribe to the newsletters published by any of the agencies that oversee or involve the work your company does. Bookmark the Internet sites they maintain. Keep up with what they are doing.
4. Make lists and forms that remind you of all the responsibilities you have to comply with an agency's regulations. Don't depend on your memory.
Unlike news journalists, PR practitioners are exposed to criminal actions:
Bribery, price fixing, mail fraud, securities manipulation, perjury.
Conspiracy is a common charge.
Legally, you are the AGENT of the client.
Three areas where you might violate the law:
1. Meeting government regulations &endash; what you MUST do
2. Government laws restricting your actions &endash; what you CAN'T do
3. Contracts with clients
Communications that could contain illegal elements:
Business memos, letters, proxy fights, photos, product claims, libelous accusations, game promotions, misrepresentation of the company's worth, political campaigns
Government Regulators:
Postal Service &endash; mail fraud
Securities Exchange Commission &endash; insider's trading. When your company's stock is publicly traded, you must be very careful using and telling the information you learn about a stock by working for the company. The communications you release may be false or misleading and create liability. Think of anything you produce &endash; news releases, annual reports, whatever &endash; as product advertising. That is, verify! The government will require such information. In some instances, the government requires you to send out a news release.
Federal Trade Commission &endash; Biggest area is misleading advertising. Infomercials are a big area. The producer can be held liable, so verification very important.
Food & Drug Administration &endash; For companies making claims for food and drugs. Requires certain type of language in ads.
Federal Communications Commission &endash; Regulates political issue and candidate advertising, telecommunications, myriad of areas.
Copyright issues: work for hire, derivative work, independent contractors, registration, trademark and trade name.
Appropriation: model releases, endorsement responsibilities if using celebrity spokesman
ADVERTISING
Commercial speech had no constitutional protection at all until 1976.
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) -- Struck down a Virginia statute prohibiting licensed pharmacists from advertising drug prices
Court found advertising entitled to less protection than fully-protected speech. The major difference is that second-class protection has no tolerance for falsehood.
Political speech can't be compelled, but advertising speech can be to some degree: warnings, disclaimers.
Political speech can't be subject to a prior restraint, but even truthful advertising may be prohibited (cigarettes, liquor).
What are the Court's reasons for allowing more regulation on commercial speech than other speech?
1. Commercial speech is hardier.
Desire for profits makes advertiser resistant to chilling effect of regulation
2. Commercial speech is more easily verified.
Scientific data, government-required testing, etc.
DETERMINING WHETHER COMMERCIAL SPEECH IS PROTECTED
4-part test under
Central Hudson Gas & Electric Corp. v. Public Service Commission (1980)
1. Whether the commercial speech is eligible for First Amendment protection.
* Is it accurate? Not false or misleading
* Does it advertise a legal product or service?
(Threshhold question: If the answer to any of these questions is "no," the analysis goes no further. The goverment may ban such speech.)
2. Whether the government asserts a substantial interest in regulating speech.
First class speech requires a "compelling" government interest. Because advertising is second-class speech, the government's interest does not have to be "compelling," only "substantial" or "legitimate."
The government's interest is usually to preserve health, safety, morals and aesthetic quality of the community.
3. Whether the regulation directly advances the government's legitimate interest.
Not the same as strict scrutiny (for first class speech), which requires that the regulation be "necessary" to serve the government's interest.
4. Whether the regulation is sufficiently narrowly tailored.
Commercial speech restrictions may be constitutional even if they are not the least restrictive, which is the requirement for first class speech. For advertising, only "a reasonable fit" between the government interest and the regulation on speech is called for.
UNFAIR AND DECEPTIVE ADVERTISING
If advertising is false or deceptive, it is outside Constitutional protection and thus may be banned.
Advertising protection is based on substantiation of all claims made in an ad. Ads are judged by what they say, what they imply and, sometimes, what they fail to say. You must have evidence of your claims BEFORE you make them.
Unless: you are "puffing." Puffery is advertising that no reasonable consumer would believe: "generalized, exaggerated or vague or subjective statements such that a reasonable person would not interpret the statement as a factual claim upon which he or she could rely."
Which is it? Puffery or in need of substantiation?
Advertisers may be ordered to alter ads that are deceptive. (The government can COMPELL certain speech because advertising is not as highly protected as political speech.).
Deception: An ad that is (1) likely to mislead (2) a reasonable consumer (3) with a material statement or omission."
FTC v. Colgate-Palmolive (1965) -- Rapid Shave was made to appear that it could soften sandpaper to the point where it could be shaven. Actually, it was plexiglas covered with sand.
* Materially deceptive because the demonstration was used as actual proof of an advertising claim
* Some mock-ups are all right, just not of the advertised product.
ADVERTISING TO CHILDREN
The Children's Online Privacy Protection Act (COPPA) -- not to be confused with COPA, which was overturned -- regulates the ways in which information can be solicited from children under 12 online.
MEDIA'S RIGHT TO REFUSE ADS
CBS, Inc., v. Democratic National Committee: (1973). TV station had first amendment right to refuse to sell airtime for a business group's editorial advertisement
Miami Herald Publishing Co. v. Tornillo (1974) Newspaper had first amendment right to refuse to sell ad to candidate who had been attacked editorially.
BUT: The Federal Communications Act requires that broadcasters provide airtime for federal candidates during elections.