Archive: First Amendment and Advertising

How Far Should Protection for Photoshop Images Extend?

By Minisha B. Patel, Articles & Notes Editor (Vol. 12)
January 27, 2013

The concept of altering and retouching images on magazine covers, advertisements, and television, is not a recent phenomenon. In fact, it is over a century old. However, with technological advancements and digitization of photographs, it has become so prevalent that there seldom is an image in the media that has not been retouched. As a result, what ends up in the media is a completely exaggerated version of reality where the end result depicts a woman’s head to be bigger than her waist size. Though the desire to imitate the look of such models is not limited to women, the issue affects women the most and has caused them to develop many psychological problems as a result. After looking at these manipulated images, women and young girls feel worse about their own body images and decide to try to achieve the “model look” they see, and develop eating disorders as a result.

While the concept of photoshopping is not evil in itself, the extent to which it has been taken can be proven to be dangerous. For example, in Yanowitz v. L’Oreal USA, Inc, a woman was fired by her male boss because he did not deem her to be “sexually attractive.” Society’s concept of beauty not only impacts individuals in the work place, but also in schools, in relationships, and in their general lives.

Although advertisements and photoshopped images are protected under commercial speech under the First Amendment, laws can be made in order to ensure that there are warning labels on the images to warn the public that what they are seeing is a distorted version of reality. Commercial speech has been given protection, but misleading or false speech has not, and according to the Federal Trade Commission Act, photoshopped images can be considered false and misleading. Though the definition of what is considered a deceptive image has yet to be carved out, there is a necessity for it, especially now that the ages of models has become as young as ten years old. While there is a strong argument for the First Amendment protections of these photoshopped images, there is also a strong government interest in instilling some regulation for the sake of protecting the healthy body images of women and especially young girls.

Advertisers could argue that it is a well-known fact that almost every image is photoshopped. However, there is an argument on the side of regulation that everyday consumers do not understand the implications of how extensive the photoshopped images are, and as a result, they try to emulate what they see in the image. As with any regulation of First Amendment rights, this one must be viewed with strict scrutiny. However, photoshopped images seem to fall within the exception of false and misleading commercial speech. The line between what image is considered false and how much photoshopping is too much, is extremely blurred but there is a severe need for the line to be clarified and defined.

Lawyers and Advertisements

By Daniel N. Mullins, Articles & Notes Editor (Vol. 12)
February 17, 2013

There are few Americans who would not recognize the advertisement by the class action lawyers involving Mesothelioma. In fact, at this point it is very likely that while reading over the word Mesothelioma, we instinctively pronounce it like the commercial we have all probably seen at least a half dozen times. The Supreme Court in Florida recently reached a decision that loosened the regulations on lawyers’ advertising rules.

One of the primary reasons the court decided to make such changes was motivated by the desire to balance the lawyer’s First Amendment right to freedom of speech with the interest in protecting and maintaining public belief in the judicial system. Another one of the major reasons given for the court’s ruling was designed to make the rules easier for all lawyers to understand while also making the system easier to enforce for the state bar.

Four of the seven Florida Supreme Court justices agreed to permit previously denied legal ads that characterized the quality of legal services being offered as well as information about past legal results. In order to ensure these new rules were as easy as possible to enforce, the court identified that these legal advertisements must be “objectively verifiable.”

This concept of objectively verifiable means that a lawyer may use an ad saying something specific, such as they have won eight cases in the past month, but they may not say something as simple as them being an “excellent” or “successful” trial attorney. If the fact can be proven as true, the lawyer may put in their ad but if it is only subjective, the Florida Supreme Court will not permit it.

These rules appear to be providing lawyers in Florida with more wiggle room in which to advertise their legal services. It was very important in the court’s decision to make sure the public trust in the legal system was not jeopardized by the loosening of these rules.

However, there is some issue with these now loosened rules and their application to the Internet. The Internet has become a beacon for many lawyers and law firms alike and many people today go to the Internet to find legal representation. In her dissent, Justice Pariente noted that this objectively verifiable standard may inhibit some communications via the Internet and seemed to be strongly suggesting that each medium be addressed differently by the court.

Regardless, it does appear that the Florida Supreme Court has taken steps to provide an extended First Amendment right to lawyers in how they may communicate with the general public. They must represent the truth, but not the whole truth. It requires lawyers to provide a level of honesty that may in fact be a good thing. If the only ads people are seeing about lawyers are facts and not mere speculation, it may help build a confidence between the legal profession and the general public.

Even though the law does not allow any lawyer to make the bold claim that they are the best lawyer in the state, it gives them the opportunity to fairly communicate with the public through advertisements what qualifications they have that make them a good lawyer. Although this may still act to limit some speech the lawyer may supply in their advertisement, it balances the public’s right to know the truth with the lawyer’s right to draw in clients.

Information v. Advocacy: The D.C. Circuit Puts the Current Version of the FDA’s Cigarette Label Requirement Up in Smoke

By Ethridge Brittin Ricks, Editor-in-Chief (Vol. 12)
August 27, 2012

In a 2-1 decision on August 24, 2012, the D.C. Circuit Court of Appeals ruled that the Food and Drug Administration’s (FDA) mandate requiring graphic images on cigarette packages is unconstitutional. The D.C. Circuit’s ruling seems to oppose a Sixth Circuit decision in March that upheld the FDA’s general authority to compel cigarette companies to place the images on their packages. Despite acknowledging that commercial speech is generally afforded less First Amendment protection, and that the government can “use shock, shame, and moral opprobrium to discourage people from becoming smokers,” Judge Janice Roger Brown noted in the majority opinion that, “this case raises novel questions about the scope of the government’s authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest – in this case, by making ‘every single pack of cigarettes in the country [a] mini billboard’ for the government’s anti-smoking message.”

At the center of this smoky controversy is the FDA’s unfiltered attempt at influencing current and potential smokers. The Family Smoking Prevention and Tobacco Control Act of 2009 gave the FDA the power to regulate the manufacture and sale of tobacco products. In accord with their new authority, the FDA planned to require cigarette companies to place one of nine graphic images on cigarette packages, which would take up to 50% of their package labeling. The nine graphic images ranged from images of diseased lungs to a man on a respirator. Additionally, the images would be coupled with a “1-800-QUIT-NOW” hotline phone number.

While the D.C. and Sixth Circuit seem to be at odds, it is not clear to what extent they disagree. The Sixth Circuit did not rule on the specific constitutionality of the nine images, and the D.C. Circuit did not necessarily negate the right of the government to impose their ideological view on a company, as the majority noted, “for present purposes, we can assume, without deciding, that if such compulsion is constitutionally permissible, the state’s actions must still with stand the applicable level of scrutiny.” Rather than criticizing the FDA’s power in general, the D.C. Circuit aimed its opinion at the labels themselves, ruling that “many of the images do not convey any warning information at all, much less make an ‘accurate statement’ about cigarettes.”

The D.C. Circuit took specific exception to what they viewed as the FDA’s failed attempt to justify the images, as the majority ruled the “FDA has not provided a shred of evidence . . . showing that the graphic warnings will ‘directly advance’ its interest in reducing the number of Americans who smoke.” Given the directed rhetoric of the D.C. Circuit, the FDA could possibly appease them by changing the nature of the images. However, the FDA is currently reviewing the D.C. Circuit’s decision, and an appeal to the Supreme Court is likely.

Joe Camel and the Marlboro Man will not be the only ones interested in how the Supreme Court handles the circuit split. In light of recent attempts to regulate fast-food restaurants, the circuit split could affect other industries as well. The issues pertaining to the tobacco companies are relevant to advertising in general, and the Supreme Court now has the opportunity to make an impactful decision regarding First Amendment jurisprudence.

Anti-Islam Ads: Hate Speech or Protected First Amendment Activity?

By Justice D. Warren, Articles & Notes Editor (Vol. 12)
September 24, 2012

According to an Associated Press article, an anti-Islam advertisement were to go on display in 10 Metropolitan Transit Authority (MTA) subway stations in New York on Monday after a federal judge in the Southern District of New York ruled that the MTA could not refuse the advertisement on the basis of its content.

The American Freedom Defense Initiative (AFDI) sponsored the ad, which read, “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad.” The same ads recently appeared on San Francisco city buses; authorities there placed disclaimers beside the ads explaining that the city did not support the message and that all revenue generated from the ads would go to charity.

Pamela Geller, the executive director of AFDI who once headed a campaign against an Islamic center near the World Trade Center site, was the driving force behind the ad. Geller also filed suit in the District of Columbia last week to enjoin Washington’s transit system from preventing display of the ad.

“If it’s not a film it’s a cartoon, if it’s not a cartoon it’s a teddy bear,” Geller said. “What are you going to do? Are you going to reward Islamic extremism? I will not sacrifice my freedom so as not to offend savages.”

Judge Paul A. Engelmayer issued a permanent injunction of MTA’s restriction last month after granting AFDI’s request for a preliminary injunction in July. Judge Engelmayer demonstrated a clear commitment to First Amendment principles in the case:

As a threshold matter, the Court notes that the AFDI Ad is not only protected speech—it is core political speech. The Ad expresses AFDI’s pro-Israel perspective on the Israeli/Palestinian conflict in the Middle East, and implicitly calls for a pro-Israel U.S. foreign policy with regard to that conflict. The AFDI Ad is, further, a form of response to political ads on the same subject that have appeared in the same space. As such, the AFDI Ad is afforded the highest level of protection under the First Amendment.

MTA refused the ad under its “no-demeaning standard,” which restricts ads that “contain[] images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.”

Following the Second Circuit’s ruling in New York Magazine v. Metropolitan Transportation Authority that displays in transit systems constituted designated public forums, Judge Engelmayer applied strict scrutiny in the case, requiring that MTA have a compelling interest in blocking the ad and that the means chosen be narrowly tailored to achieve that interest. Judge Engelmayer found that, as worded, MTA’s no-demeaning standard was not narrowly tailored because it allowed advertisers to demean groups of people that are not protected under the regulation.

The ruling in the MTA case came before violent protests erupted in the Middle East in response to an anti-Islam film that was released on YouTube earlier this month. It will be interesting to see if recent events will have any effect on Geller’s request for an injunction in D.C. should the case go to court.

The Supreme Court in Brandenburg v. Ohio carved out an exception to First Amendment freedoms through a two-prong test for determining whether the speech is protected. Under Bradenburg,speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and it is “likely to incite or produce such action.” While it seems evident that the anti-Islam film would not meet this test, it is possible that AFDI’s ad could.

The aftermath of the anti-Islam film could provide the D.C. court’s evidence that AFDI’s ad is in fact “likely to incite or produce” imminent lawless action. And, unlike the film, AFDI’s ad comes with a specific directive, encouraging viewers of the ad to “Defeat Jihad.” At a time in which global tensions are high surrounding anti-Islam sentiments, it is feasible that a court could consider the current state of affairs in determining the value of certain speech.

In the end, it is doubtful that the D.C. court would be willing to split with the Southern District of New York on this issue because the ads have appeared in San Francisco without producing “imminent lawless action” (though many artists have taken to covering up portions of the ad with their own content). Regardless of how that court decides, the debate will continue nationwide over the efficacy of providing First Amendment protection to speech that may leave certain people susceptible to violence.