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Here is a pertinent portion of a Federal appeal court decision, where billboard company Lamar Outdoor Advertising brought suit against the State of Mississippi over its ban on alcohol ads.
The state argued that any such ads would not be entitled to 1st Amendment protection because they would be 'misleading' for various reasons. The court rejected the arguments. Read for yourself what it said and why. Based on this case, all that the State of Texas can do is issue an order for me to make more disclosures (disclaimers).
If this is so, I examined the extent of disclosure in my Terms and Conditions and found no possible way to make them clearer or more extensive. But if the State of Texas has any suggestions on making it clearer, I'm listening. (The fact that I'm listening proved by my actions indicated in letter to AG of March 27, 2009)
LAMAR OUTDOOR ADVERTISING vs. MISSISSIPPI STATE TAX COMMISSION, 701 F.2d 314 (5th Cir. 1983) (http://altlaw.org/v1/cases/518581)
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Mississippi next argues that liquor advertising is not entitled to First Amendment protection because it is "generically misleading." See Central Hudson, supra, 447 U.S. at 566, 100 S.Ct. at 2351, 65 L.Ed.2d at 351 ("For commercial speech to come within [the First Amendment], it at least must concern lawful activity and not be misleading."). The state asserts that advertising will necessarily portray liquor consumption as appealing, fashionable and a badge of the "good life." It is argued that such advertising is misleading in two ways. First, the state asserts that because liquor consumption is hazardous to health, it is not ---
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--- a desirable activity and favorable representations are therefore simply false. Second, it contends that because this presentation omits information about the potentially harmful effects of alcohol consumption, it is incomplete and inherently misleading. These arguments are not persuasive.
Mississippi's first argument apparently assumes that this court may determine as a matter of law that all liquor consumption is "bad" and that representations that it is "good" are therefore false or misleading. Those are subjective determinations that we are neither equipped nor empowered to make as a matter of constitutional law. The second argument, while more plausible, does not carry the state as far as it would like.
The evidence in this case establishes that liquor consumption, and especially its abuse, entails many potentially harmful physical effects. To the extent that liquor advertising omits these facts, the information conveyed is incomplete and a potential exists that some will be misled. However, Mississippi goes too far when it claims that this deprives the advertising of all constitutional protection. "Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all." Central Hudson, supra, 447 U.S. at 562, 100 S.Ct. at 2349, 65 L.Ed.2d at 348. Although the government clearly has the power to correct misleading omissions, "the preferred remedy is more disclosure, rather than less." Bates, supra, 433 U.S. at 375, 97 S.Ct. at 2704-05, 53 L.Ed.2d at 830; In the Matter of R---- M.J----, Appellant, 455 U.S. 191, 200-02, 102 S.Ct. 929, 936-37, 71 L.Ed.2d 64, 73 (1982); Better Business Bureau v. Medical Directors, Inc., 681 F.2d 397, 405 (5th Cir. 1982). "[T]he states may not place an absolute prohibition on certain types of potentially misleading information . . . if the information also may be presented in a way that is not deceptive." R---- M.J----, supra, 455 U.S. at 203, 102 S.Ct. at 937, 71 L.Ed.2d at 74; Medical Directors, supra, 681 F.2d at 405. Thus, where an advertisement had the potential to mislead by implying that the Better Business Bureau had endorsed the advertiser's services, we held that a prominent disclaimer of the Bureau's endorsement was the appropriate response. Medical Directors, supra, 681 F.2d at 405; see also Bates, supra, 433 U.S. at 384, 97 S.Ct. at 2709, 53 L.Ed.2d at 836; R---- M.J----, supra, 455 U.S. at 199-203, 102 S.Ct. at 935-937, 71 L.Ed.2d at 72-74. The Supreme Court also has suggested that the prohibition against prior restraints may be inapplicable to attempts to regulate misleading commercial speech. Virginia Pharmacy, supra, 425 U.S. at 771-72 n. 24, 96 S.Ct. at 1830-31 n. 24, 48 L.Ed.2d at 364 n. 24; Athena Products, supra, 654 F.2d at 367. Time, place, and manner restrictions also have been approved as methods of preventing misleading commercial speech. See generally Virginia Pharmacy, supra, 425 U.S. at 770-71, 96 S.Ct. at 1829-30, 48 L.Ed.2d at 363-64. These decisions convince us that any potential to mislead that liquor advertising may possess should be addressed within the framework of permissible regulation of commercial speech; these concerns do not warrant wholesale exclusion of liquor advertising from First Amendment protection.
You can find the entire case at http://altlaw.org/v1/cases/518581 |