March 2007

By Barry M. Benjamin

Imagine the following two scenarios, and try to figure out what the real difference is. First, your competitor blatantly lies in its advertising about the effectiveness of its products; second, your competitor blatantly lies to a reporter about the effectiveness of its products, and the reporter publishes the lies in an article or in a magazine. It seems like the same situation, but it is not. With the first, you could sue for false advertising because the advertisement is “commercial” speech, whereas with the second, you cannot because the magazine article is “non-commercial” speech. A similar difference is presented if a newspaper uses a picture of a celebrity without the celebrity’s consent to highlight a news article, as opposed to a company using the same celebrity picture in a print advertisement, in the same newspaper, to promote the company. A breach of the celebrity’s right of publicity claim is not available against the newspaper because the news article is “non-commercial,” but is available against the company because the print advertisement is “commercial.” The rationale for both is that while the First Amendment fully protects “non-commercial” speech, it protects “commercial’ speech in a significantly limited way.

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