Understandably, the Supreme Court decided that commercial
speech deserves less protection under the first amendment than noncommercial
speech. But even before that there was recognition that commercial speech
should not be fully protected speech because there is some incentive to mislead
the public in order to sell products and or services. In 1914, Woodrow Wilson
created the Federal Trade Commission, FTC, initially as a way to fight trusts
and enforce anti-trust law, or more specifically to fight “unfair methods of
competition in commerce” (Tedford & Herbeck 213). It interpreted this as
having the power to regulate advertising, specifically stopping false and
misleading advertising, and the Supreme Court agreed (Tedford & Herbeck
214). Now there are FTC guidelines for
what is considered false or deceptive advertising. What makes deceptive
advertising, in part, is that there must be a “representation, omission, or
practice that is likely to mislead the consumer” (Tedford & Herbeck 215).
The FTC also looks at the advertising from the perspective of the consumer, so
how a reasonable consumer would interpret and understand the ad is part of the
determination of whether or not there ad is deceptive. Finally, the omission or
misrepresentation must be a “material one,” or one of significance (Tedford
& Herbeck 215). For instance, if an ad for toothpaste shows a green tube,
but in actuality the tube is red that would not be a material misrepresentation
or omission.
This brings to mind Crisis Pregnancy Centers (CPCs) that are
essentially pro-life institutions. Some engage in false advertising, as they
pose as abortion providers. But they do not provide abortions. Instead they
provide women with false information about abortion--- that it could increase
their risk of breast cancer, result in sterility and other false information
(Winter 2015). In some cases they will require women to get multiple sonograms
in an attempt to delay the abortion. In some cases women get fed up, go to a
legitimate clinic only to learn that it is too late and an abortion cannot be
performed. Some states have tried to regulate CPCs by forcing them to post
signs that say they do not provide contraceptives or abortions (Winter 2015).
But most of the laws have been struck down as a violation of the CPCs free
speech (Winter 2015).
To me, it would seem that these CPCs are violating the FTC’s
rules about false advertising. They are misleading the consumer, in a material
way. However, because most of these CPCs are nonprofits, the courts have decided
that their speech is noncommercial because they are not selling anything, there
is no direct economic transaction—the services are free. But there is an
economic consequence: having a child. To me, it seems like this should fall
under commercial speech.
Sources:
Tedford, Thomas
L., and Dale A. Herbeck. Freedom of
speech in the United States. 8th ed., State College, PA,
Strata Publishing, Inc., 2017.
Winter, Meaghan. “Three Legal Strategies for Bringing Down
Crisis Pregnancy Centers.” Slate Magazine,
17 June 2015,
I think this post is very interesting, and I completely agree with your opinion that Crisis Pregnancy Centers are in violation of FTC rules on false advertising. Being nonprofit organizations, I would assume Crisis Pregnancy Centers to be aiming to help pregnant women understand all of the options they have without a hidden agenda. There is a misleading factor in their advertising where they claim to counsel pregnant women on their options, but really end up telling them all of the bad things about abortion once they are in the door. It should be illegal and definitely not protected under the First Amendment to create an image for your organization that you help counsel pregnant women and then, as you mention, feed them false information about negative effects of abortion or stall them until it is too late to decide on an abortion. As of right now it is still a woman's choice of what she does with her pregnancy, so any company, organization, or other person should not have the right to be able to heavily influence or stall her decision.
ReplyDeleteOne thing I wonder is if the FTC will ever be able to win this battle and order the Crisis Pregnancy Centers to post, in writing, that they do not perform or support abortions. Also, what influence we, the people, could have on this problem; how do we help prevent this false advertising? Can we? As a start, I think it would first help by making edits to the First Amendment, to make it less vague. I believe that is a way that people will be less likely to get around the law. We can also make ourselves more informed, and inform those around us about these kinds of organizations and protections under the First Amendment. In the end, the people truly hold power to create change.