56 U. Cin. L. Rev. 1273 (1987-1988)
Proof or Consequences: False Advertising and the Doctrine of Commercial Speech

handle is hein.journals/ucinlr56 and id is 1287 raw text is: PROOF OR CONSEQUENCES: FALSE ADVERTISING AND
THE DOCTRINE OF COMMERCIAL SPEECH
Richard M. Schmidt, Jr. and Robert Clifton Burns*
In his most recent book on American advertising Professor Ro-
land Marchand describes with equal measures of wit and perception
the development of modern advertising as it evolved from simple
descriptions of the cost and functions of an advertised product to
the more complex modern strategies that may provide the con-
sumer with very little information about the product and instead
merely connect the product with a highly idealized life style., Soft
drink, fast food, alcohol and tobacco advertising most commonly fit
into this latter category. Many of these advertisements, or at least
their implications, are unabashedly false: has anyone, for example,
ever left his mansion to borrow a cup of scotch from a neighboring
chateau? For that matter, can we legitimately believe that the rich
necessarily prefer expensive imported scotch to simple domestic
canned beers?
Of course, state and federal agencies charged with insuring truth
in advertising have wisely chosen not to engage in exploring the po-
tentially false sociological implications underlying lifestyle advertis-
ing. Instead, enforcement activity has been principally confined to
those advertisements that either explicitly or implicitly make false
representations regarding the functions, uses or qualities of the ad-
vertised product. Recent developments in the protection of com-
mercial speech have had little effect on this governmental regulation
of false and misleading speech, uniformly stating that false and mis-
leading commercial speech is accorded no protection by the first
amendment.2
The exemption of false and misleading commercial speech from
the protections of the first amendment, although often broadly
stated, has never been examined to determine whether even such
speech, although certainly accorded less protection than other
forms of commercial speech, should nevertheless be accorded some
protection. It is our thesis that uncertainties in the federal regula-
tion of advertising chill legitimate commercial speech and that even
* The authors are partners in Cohn and Marks, Washington, D.C., which serves as
general counsel for the American Society of Newspaper Editors and Washington
counsel for the Association of American Publishers.
1. See generally R. MARCHAND, ADVERTISING THE AMERICAN DREAM: MAKING WAY FOR
MODERNITY, 1920-1940 (1985).
2. For discussion of these developments, see infra text accompanying notes 40- 77.
1273

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