Deceptive Commercial Speech and Advertising

1028 words 5 pages
Deceptive Commercial Speech and Advertising
According to the commercial speech doctrine, only deceptive speech that is considered commercial may be regulated. General deceptive speech is not commercial, may not be regulated. When deciding what may and may not be regulated, it is important to understand the subtle differences in what is considered commercial and non commercial speech. An analyzation of false advertising would give further understanding to the notion of commercial speech and how it may be degenerative to a society when untruthful.
Commercial Speech
According to the Supreme Court, the definition of commercial speech is a “combination of a core notion surrounded by a penumbral boundary defined on the basis of three
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Finally, the state must show that the regulation of commercial speech has been narrowly tailored to fit a specific interest. For example: the regulation involving the removal of a billboard must be specific to that particular billboard. Following these guidelines allows for a state to regulate commercial speech that is not misleading or unlawful in goods or services.
Fraud, Falsity, and Misleadingness
In 1981, J. Edward Russo, Barbara L. Metcalf, and Debra Stephens identified three approaches to unjust advertising. Each view parallels the three components of advertising communication. “Fraud focuses on the advertiser and assumes a deliberate intent to create false beliefs about the product. Falsity in advertising refers to the existence of a claim-fact discrepancy. Misleadingness focuses exclusively on consumer beliefs” (Russo, Metcalf, & Stephens, 1981).
Advertisers who display low ethics and advertise deliberate misinformation are guilty of fraud; however, it remains an impractical approach. Proving a “deliberate intent” to mislead through an advertisement is difficult and may be irrelevant to the harm caused to consumers. Although, major industry regulator, the National Advertising Division (NAD) of the Better Business Bureau, does not generally require proof of fraud to remove an ad from publication, this does not apply in all situations (Russo, Metcalf, & Stephens, 1981).

Falsity in advertising occurs when a claim is made that is not documented with fact. For


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