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Q: Members of Congress have received numerous complaints about an off-road vehicle called Liferisk. It has three balloon-tire wheels and a 200 horsepower engine. It is designed to drive over any surface at speeds up to 80 miles per hour. Several people have been killed when their Liferisks overturned, and a number of others have been injured. Congress debated forbidding the manufacture of Liferisk, but it is made by an American company and is exported quite successfully overseas, thereby helping Americas balance of payments. Instead, Congress made it illegal to advertise Liferisk in the United States. (No one argues Liferisks ads are misleading or deceptive.) Liferisks manufacturer asks a federal court to declare the law a violation of the manufacturers First Amendment rights. How should the court rule? Why?
Q: Under what condition does the commercial speech doctrine permit government regulation of truthful, nonmisleading advertising for legal goods and services?
Q: In Sorrell v. IMS Health Inc., the Supreme Court reviewed a state law prohibiting the sale of doctors prescription records (tracking consumer trends) to marketing and data-mining firms. The Court agreed that the regulation targeted economic activity and infringed on commercial speech. The majority applied strict scrutiny to strike down the regulation as an unconstitutional content-based and viewpoint-based regulation. Discuss the reasoning of the dissent to explain why this ruling is significant and how it changes the commercial speech doctrine.
Q: In deciding to allow POM Wonderful to pursue a false advertising lawsuit against Coca-Cola, the Supreme Court discussed the Lanham Act, Food and Drug Administration rules, and Federal Trade Commission rules. What does this indicate about the current state of federal oversight of false advertising.
Q: The FTC distinguishes between false and misleading advertising and puffery. Define the two categories.
Q: In Sorrell v. IMS Health Inc., the Supreme Court held that the First Amendment permitted government to limit the flow of commercial information to a specific audience.
Q: Speech loses its First Amendment protection when money is spent to create or distribute it.
Q: The Supreme Court has ruled that a states interest in regulating gambling establishes a parallel state interest in regulating the advertising of gambling.
Q: Courts generally have said government has the same authority to mandate graphic consumer warnings as it has to regulate tobacco advertising.
Q: The Federal Communication Commission regulates offensive broadcast advertising.
Q: Recent Supreme Court decisions appear to be expanding the application of the Lanham Act.
Q: A single federal agency and a uniform set of rules applies to regulation of all false, deceptive, or misleading commercial speech.
Q: State the two categories of measures available to the Federal Trade Commission to oversee advertising, and provide one example of each.
Q: The Lanham Act originally targeted unfair competition in business.
Q: Congress first established the Federal Trade Commission Congress in the 1960s to address the controversy surrounding tobacco advertising.
Q: Regulations of alcohol product advertising must treat print, outdoor, broadcast, and online advertising the same.
Q: One element of the commercial speech doctrine examines whether the product in question should be advertised at all.
Q: The First Amendment protects only the rights of the speaker, not the right of the public to receive information.
Q: The Federal Trade Commission encourages companies to track childrens online behavior to enable advertisers to tailor advertising appropriately to a young audience.
Q: Decades ago, the Supreme Court began to recognize that the publics First Amendment interest in consumer information may be as high as the interest in political information.
Q: The government has nearly absolute power to control the labeling on consumer products to avoid harms such as potency or price wars.
Q: When false or misleading advertising may lead to immediate harm, the Federal Trade Commission has ______. a. no special authority b. to seek approval from the Senate Commerce Committee before taking punitive action c. authority to seek a court restraining order d. to act within 72 hours
Q: The Federal Communications Commissions rules on broadcast advertising apply ______. a. equally to public and commercial broadcasters b. stricter limits on commercial broadcasters c. stricter limits on public broadcasters d. only to commercial broadcasters
Q: Under the Lanham Act, a plaintiff has standing to bring suit when s/he can ______. a. prove beyond a shadow of doubt that the defendants advertising directly and immediately caused the harm b. prove that the defendants actions clearly fall under the laws jurisdiction c. establish that the defendants actions within the laws zone of interest were the proximate cause of the harm d. show that the defendants actions within the laws zone of interest directly and immediately caused the harm
Q: The application of the Central Hudson test, both before and after Sorrell, has produced consistent court rulings.
Q: The FCC is the primary federal regulator of advertising.
Q: The advertising of vice products, such as tobacco and alcohol, often has been the source of cases that test the commercial speech doctrine.
Q: In spite of protests by First Amendment proponents, all tobacco advertising is now illegal.
Q: The fact that advertising can cross state lines, where laws may differ from those in the originating state, is not a concern for the courts.
Q: The Federal Trade Commission has declined to regulate native advertising.
Q: Since the commercial speech doctrine was established in the Central Hudson case, it has remained unchanged.
Q: Because government controls or bans certain products and services, advertising for these products and services ______. a. is subject to the same degree of government control b. may be subject to some government regulation c. may not be regulated because the public has a heightened need for information in these areas d. is illegal
Q: In Sorrell v. IMS Health Inc., the Supreme Court established that government regulation of advertising ______. a. may target messages contrary to its own views b. may not engage in content-based, viewpoint discrimination c. may not target messages it disfavored d. may not engage in content-based, viewpoint discrimination and may not target messages it disfavored
Q: The Supreme Court has not heard cases involving offensive political advertising, and the U.S. Circuit Courts of Appeal ______. a. disagree on the test to use to determine the outcome of these cases b. agree on the test to use to determine the outcome of these cases c. agree that government may ban false, misleading, or profoundly offensive political advertisements d. also have not heard these cases
Q: In deciding the false advertising suit brought by POM Wonderful against Coca-Cola, the Supreme Court held that ______. a. the Food and Drug Administration on product content labeling barred a Lanham Act unfair competition lawsuit b. the Lanham Act has no bearing on food and beverage labeling c. the Food and Drug Administration on product content labeling barred a deceptive labeling lawsuit d. false and misleading labeling could be grounds for a lawsuit even when the labeling met the Food and Drug Administrations minimum content requirements
Q: The Supreme Courts commercial speech decisions in 2014 make clear that the application of the commercial speech doctrine to corporate speech is ______. a. stable b. changing c. clear d. both stable and clear
Q: At the federal level, consumers are protected from false and misleading advertising by ______. a. the First Amendment, the Lanham Act, and the rules and regulations of multiple federal agencies b. the Lanham Act and the Food and Drug Administration c. only the First Amendment d. the Lanham Act and the Federal Trade Commission
Q: Which of the following is not part of the Central Hudson test? a. the size and impact of the commercial speech b. whether the ad is false, misleading, or for an illegal product c. the governments interest in the regulation d. whether the regulation directly advances the government interest
Q: Many of the court decisions in the area of commercial speech involve advertising and labeling of ______. a. alcohol and tobacco b. gambling c. pharmacies and prescription drugs d. all of these
Q: Which of the following is not true about the CAN-SPAM Act? a. It prohibits the use of false header information in commercial e-mail. b. It requires unsolicited e-mail messages to include opt-out instructions. c. ISPs, state attorneys general, and federal agencies can pursue spammers in federal courts with criminal and civil penalties. d. It requires all Internet advertisers to register with the FCC.
Q: Courts define commercial speech as ______. a. paid messages of any kind b. paid messages that do no more than propose commercial transactions c. paid and unpaid messages designed to promote commercial transactions and advance corporate interests d. none of these
Q: When government uses regulation to alter the flow of information to the public and shift consumption patterns, the Supreme Court has said the governments goal is ______. a. of the highest order b. irrelevant to the constitutionality of the regulation c. likely to be unconstitutional d. key to the national interest in a thriving domestic economy
Q: The First Amendment protection for commercial speech is ______. a. well defined and firmly established in the Supreme Courts decision in Valentine v. Chrestensen b. limited by the Fourteenth Amendment c. unclear d. shrinking in response to the Supreme Courts growing concern about the undue influence of corporations on public opinions and actions
Q: In reviewing commercial speech cases, generally lower courts ______. a. apply the Central Hudson test with consistent results b. consistently define commercial speech c. apply the Central Hudson test with inconsistent results d. consistently say they know false advertising when they see it
Q: The Supreme Court ruled that the First Amendment imposed no limits to government regulation of purely commercial speech ______. a. in the 1940s b. in the 1960s c. in the 1980s d. after 2005
Q: The Supreme Court first ruled that the First Amendment provided some protection from government regulation of commercial speech in a case involving ______. a. a letter to the editor in which Nike defended its overseas facilities b. interstate advertising for casinos c. a tobacco ad using cartoon characters d. an advertisement for the civil rights movement
Q: The Supreme Courts ruling in New York Times v. Sullivan clearly establishes that ______. a. any payment for the publication of material limits the First Amendment protection for the content b. payment for publication does not single-handedly limit the First Amendment protection for content c. the First Amendment absolutely protects all content distributed by the press from government regulation d. content qualifies as commercial speech an average person would recognize the as an ad
Q: The FTCs two primary approaches for addressing problematic advertising are ______. a. preventive and corrective b. corrective and punitive c. punitive and comprehensive d. preventive and comprehensive
Q: FTC opinion letters are ______. a. its most formal preventive mechanism b. informal and advisory c. designed to provide guidance to an entire industry or market sector d. generally a last resort prior to the levying of heavy fines
Q: Which word or phrase applies to the requirement that advertisers must verify or prove their claims? a. voluntary compliance b. cease and desist order c. consent order d. substantiation
Q: When courts apply the post-Sorrell Central Hudson test, they ______. a. always strike down regulation of advertising b. never strike down regulation of advertising c. ask only whether the ad is for a legal product d. follow a complicated, multistep process and strike down many regulations
Q: Which word or phrase applies to the agreement between the FTC and an advertiser in which specific terms of future conduct are stipulated? a. voluntary compliance b. cease and desist order c. consent order d. substantiation
Q: In recent years, the FTC has ______. a. initiated action against food and clothing products that make unsubstantiated health and weight-loss claims b. avoided the use of its corrective measures c. reduced the term of its members d. made puffery its primary focus
Q: Which federal agency is the primary regulator of advertising? a. Federal Trade Commission b. Federal Communications Commission c. Federal Bureau of Tobacco, Alcohol, and Firearms d. Federal Securities and Exchange Commission
Q: Disclosure and substantiation are ______. a. elements the Supreme Court used to define commercial speech b. fraudulent or misleading claims made by advertisers c. tools used by the Federal Trade Commission to correct potentially misleading advertising d. required elements of alcohol and tobacco labeling
Q: The FTC definition of false and misleading advertising includes all of the following except ______. a. taken from the perspective of a reasonable consumer acting reasonably b. a material claim likely to affect consumer behavior c. a specific intent to deceive the consumer d. a representation, practice, or omission likely to mislead the consumer
Q: In the development of commercial speech law, which statement best describes how Sorrell affected the application of the Central Hudson Gas & Electric Corp. v. Public Service Commission test? a. There was no impact; Central Hudson remained unchanged. b. Sorrell struck down Central Hudson. c. Sorrell created an entirely new test and gave courts a choice in deciding whether to use the Sorrell or the replaced Central Hudson test. d. Sorrell modified the Central Hudson test, strengthening the constitutional protection for truthful advertising for legal products.
Q: Which statement is not true regarding the commercial speech doctrine? a. The doctrine attempts to ensure that any government regulation of advertising serves a government interest. b. The doctrine attempts to ensure that the government interest is directly advanced by the regulation. c. The doctrine attempts to ensure that the government interest is advanced through the least restrictive means. d. The doctrine asks whether the advertisement in question is false, misleading, or promotes anything illegal.
Q: The Federal Trade Commission views "word-of-mouth" advertising as ______. a. a form of puffery over which it does not exercise oversight b. advertising via social media from influencers that is subject to the full range of FTC oversight c. falling outside the definition of commercial speech d. a form of advertising that is evolving too rapidly to regulate
Q: The Lanham Act targets ______. a. improper use of broadcast frequencies b. unfair competition by an advertiser c. the distribution of obscene material via the U.S. mail d. fair use violations
Q: The FTC defines puffery as ______. a. grossly misleading claims about products or services b. exaggerated product claims that no reasonable person would take seriously c. false material claims likely to affect consumer purchase decisions d. mentioning hard liquor on television
Q: Which of the following is not an FTC measure that may be used to control false advertising? a. consent order b. ad substantiation c. corrective advertising d. reciprocal order
Q: The U.S. Supreme Court has reviewed cases involving regulation of gambling advertisements because ______. a. the Constitution clearly protects advertising from such regulation b. there is no substantial government interest in regulating advertising c. neighboring states differ in their regulation of the activity and its promotion d. the Court has authority over all regulation of vice products and activities
Q: The federal Controlling the Assault of Non-Solicited Pornography and Marketing Act ______. a. bans all advertising and promotion of pornography b. establishes statutory protection for the marketing of pornography c. regulates deceptive labelling and spam, including pornography, online d. bans all explicit sexual content online
Q: Native advertising is a form of advertising that ______. a. is difficult to distinguish from the editorial content of the platform on which the ad appears b. promotes the goods and services of the producer of the platform on which the ad appears c. encourages investment in local goods and services in the public interest d. highlights the association of the advertised goods and services with members of a registered tribe
Q: What is a disparaging trademark? Can you give an example?
Q: The important Bigelow v. Virginia case involved ______. a. an abortion clinic ad b. a prescription drug price ad c. gambling casino ads d. ads for electrical appliances
Q: In 1975, the U.S. Supreme Court in Bigelow v. Virginia held that commercial speech ______. a. has no First Amendment protection b. for legal products and services enjoys some First Amendment protection c. is not a form of speech at all d. is illegal when it targets children
Q: In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, about advertising prescription drug prices, the U.S. Supreme Court ruled that ______. a. commercial speech has no First Amendment protection b. while some regulation of advertising is permissible, it was not in this case because of the valuable information contained within the ads in question c. commercial speech has absolute First Amendment protection d. advertisements must be allowed to make exaggerated claims
Q: In thanks for all her work on his current research, Prof. Jones gives his graduate student Leslie the notes he wrote about his last research project. Jones said to Leslie, These notes are yours to keep. Needing money to complete her education, Leslie decides to arrange with a book publisher to publish Joness notes. Jones is a very famous scientist. A book reprinting Joness notes likely would sell well. Do Leslie and the book publisher have the right to publish Joness notes?
Q: Explain the hot news doctrine and its history.
Q: The U.S. Supreme Court has listed a number of factors for courts to consider in determining whether a person acted as an employee so that the works were made for hire. List at least three of the six factors.
Q: Define the Transmit Clause.
Q: Explain the significance/basic outcome of the Supreme Courts Aereo decision (2014).
Q: Transformative use is one of the primary defenses used today when arguing fair use. Transformative use is generally fair use if the answer to two questions is yeswhat are those two questions?
Q: The U.S. Supreme Court has ruled that the First Amendment allows downloading current music recordings from the internet without permission.
Q: Congressional laws allow individuals to make copies of television programs and computer software for their own personal use.
Q: A trademark is a word, name, symbol, or design used to identify a companys goods.
Q: A word, name, or symbol must be distinctive to be eligible for a trademark.
Q: Trademark law does not protect internet domain names.