14 - ADVERTISING AND SPAM

Summary

Introduction

Generally any action designed to draw public attention to an organization, product, or service is considered “advertising.” Certainly web pages qualify as an advertising medium.

Advertising is “speech” and is protected by the First Amendment. However, recall from Chapter 12 on Constitutional Law that commercial speech may be regulated or even prohibited if it is misleading or pertains to an illegal product, or if regulation of the commercial speech directly advances a substantial (i.e., not necessarily compelling) state interest. Examples include the regulation of ads about cigarettes, about whiskey, and about gambling. Television and radio networks screen proposed ads to weed out those that are “offensive.” Will such regulations apply equally on the Net? It's still too early to be sure.

The following Supreme Court case addresses one particular type of advertising – by attorneys – and illustrates the criteria applied in decisions regarding whether advertising may be regulated or even prohibited.

Advertising and Spam: Case 1

BATES ET AL. v. STATE BAR OF ARIZONA

No. 76-316

SUPREME COURT OF THE UNITED STATES

433 U.S. 350; 97 S. Ct. 2691; 53 L. Ed. 2d 810; 1977 U.S. LEXIS 23; 1977-2 Trade Cas.

(CCH) P61,573; 51 Ohio Misc. 1; 5 Ohio Op. 3d 60; 2 Media L. Rep. 2097

Argued January 18, 1977

June 27, 1977; as amended Petition for Rehearing Denied October 3, 1977

BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined, and in Parts I and II of which BURGER, C.J., and STEWART, POWELL, and REHNQUIST, JJ., joined.