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Commercial Speech and the First Amendment

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Patterson Belknap Webb & Tyler, LLP

1133 Avenue of the Americas

New York, NY 10036

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From Yale Law School’s Abrams Institute for Freedom of Speech - The 4th Commercial Speech and Commercial Speech Conference

COMMERCIAL SPEECH POST-NIFLA v. BECERRA: LEGITIMATE CHECK ON COMPELLED SPEECH OR WEAPONIZATION OF THE FIRST AMENDMENT?

Panelists:

  • Robert Post – Sterling Professor of Law at Yale Law School, New Haven, CT
  • Coleen Klasmeier – Partner and Global Coordinator of the Food, Drug and Medical Device Regulatory Practice Area Team at Sidley & Austin LLP, Washington, DC
  • Jane Bambauer, Professor of Law, James E. Rogers College of Law, The University of Arizona, Tucson, AZ

Moderator:

  • Joel Kurtzberg – Partner, Cahill Gordon & Reindel LLP, New York, NY

While the United States Supreme Court’s recent decision in National Institute of Family and Life Advocates v. Becerra is technically not a commercial speech case, the decision is part of a recent trend of cases applying strict scrutiny, with few exceptions, to “content-based regulations of speech,” defined broadly as any law that targets speech based on its communicative content. Assuming the Supreme Court means what it says in NIFLA and other recent decisions, how far are the Justices willing to go in undoing government regulation of speech? Does NIFLA mark the death-knell of Central Hudson? Will strict scrutiny apply to most future regulations of commercial speech? Is the future one filled with challenges to the vast array of governmental regulation that engages speech?

THE CONSUMER “RIGHT TO KNOW” VERSUS THE FIRST AMENDMENT

Panelists:

  • Jonathan H. Adler – Johan Verheij Memorial Professor of Law and Director, Center for Business Law and Regulation, Case Western Reserve University School of Law, Cleveland, OH
  • Rebecca Tushnet – Frank Stanton Professor of the First Amendment, Harvard Law School, Cambridge, MA
  • Helgi C. Walker – Partner, Appellate and Constitutional Law Group and Co-Chair, Administrative Law and Regulatory Practice Group, Gibson, Dunn & Crutcher LLP, Washington, DC

Moderator:

  • Jonah Knobler, Partner, Patterson Belknap Webb & Tyler, New York, NY

Increasingly, governments at all levels are requiring product manufacturers to disclose information in their labeling or advertising, and plaintiffs are seeking to hold manufacturers liable in tort on the theory that the failure to disclose such information is “misleading” or “unfair.” Meanwhile, the subject matter of these disclosure requirements (or asserted requirements) continues to expand beyond traditional health-and-safety warnings to include information about, e.g., country of origin, inclusion of GMO ingredients, and use of ingredients or materials “tainted” by unfair labor practices or international conflicts.

This panel will address the tension—if any—between such mandatory disclosure regimes and manufacturers’ First Amendment right to refrain from compelled speech.

DRAWING THE LINE BETWEEN “NEWS” AND COMMERCIAL SPEECH

Panelists:

  • Rhonda Powell - General Counsel, BuzzFeed, New York, NY
  • Mary Engle – Associate Director, Division of Advertising Practices, Federal Trade Commission, Washington, DC
  • Paul Safier – Of Counsel, Ballard Spahr LLP, Philadelphia, PA

Moderator:

  • Terri Seligman – Partner and Co-Chair of the Advertising, Marketing & Public Relations Group, Frankfurt Kurnit Klein & Selz, New York, NY

This panel will focus on recent decisions defining what is and is not commercial speech from the broad perspective of newsworthiness. Recently, there have been several decisions in which the courts and National Advertising Division have been forced to distinguish between news and commercial speech. Are we seeing a trend toward more liberal interpretations of “news” or “newsworthiness”? What implications does this line-drawing have for the right of publicity, native advertising, and custom content? Where will the increasing use and monetization of data fall on the news/commercial speech divide?

Hosted by Patterson Belknap Webb & Tyler LLP

1133 Avenue of the Americas

New York, NY 10036

Additional sponsors:

Ballard Spahr LLP

Davis Wright Tremaine LLP

Frankfurt Kurnit Klein & Selz PC

CLE credit is pending

Space is limited for this Conference. We anticipate a waiting list, so please do not register if you do not think you will actually attend.

If you find that you cannot attend, please let us know ASAP. Again, we anticipate a waiting list.

If you decide to send a colleague in your place, let us know ASAP so that we can put them on the list for entry to the building.

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Patterson Belknap Webb & Tyler, LLP

1133 Avenue of the Americas

New York, NY 10036

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