United Statesthe Fourth Amendment case on whether an unauthorized driver has rights to challenge the search of a rental car. Regular readers may remember the case, as I blogged about it here before the argument and here after the argument.
Rosman Tennessee Law Review, October 29, Nonetheless, in practice at least, courts appear tougher on conclusions of the Postal Service than those of the FTC as to the effect an advertisement has on the ordinary reader. Previous academic works concerning the human model cases, written almost exclusively by students, were published in two stages.
Indeed, the previous works generally assumed without discussion that an advertising campaign that employed human models, all or almost all of whom were white, sent a discriminatory message.
It does this by exploring analogous statutes and reviewing the type of proof each requires for determining the meaning of advertisements where the alleged representation is not explicit, but is said to be implied in the advertisements. I also suggest an argument that the First Amendment provides certain protections for defendants exposed to civil liability for commercial speech, and that those protections should apply regardless of the statute in question.
Specifically, I hope to advance the argument that the First Amendment may preclude the imposition of damages for ambiguous commercial speech unless: The statutes I will examine fall into two broad categories: In examining each of the statutes that affects advertising, the analysis will focus on the following questions: Who is the relevant reader?
In doing so, the FTC and the courts have interpreted advertisements broadly such that any potentially misleading impression is subject to the proscriptions of the FTC Act, even if other interpretations that would not be misleading were possible.
The Relevant Reader The courts generally take the position that it is the least intelligent and the most gullible who deserve protection from false advertisements under the FTC Act.
The language of the ordinary purchaser is casual and unaffected. One could well argue that the purpose of the FTC Act is to prevent the fraudulent or unfair sale of products and services, not to prevent psychological harm to children. Unfortunately, however, the Second Circuit did not identify this as an issue.
Proving Deception The FTC begins with an advantage in the cases it brings because it has a standard of interpreting advertisements that focuses on the net impression gleaned by the foolish and gullible.
In addition, case law provides the FTC with even more leeway by holding that advertisements mean whatever the FTC says that they mean. In short, almost no evidentiary proof by the FTC is required at all, other than submission of the advertisements.
The Commission occasionally offers dictionary definitions to define words n43 or places ordinary consumers on the stand to testify as to their understanding of advertisements. Beginning in the mids, the Commission indicated that it wanted extrinsic evidence to be submitted concerning the meaning of certain kinds of advertisements.
As Professor Ivan L. Intent No showing of intent by the advertiser is needed for the FTC to enjoin an advertisement. United States Postal Service n64 illustrates the contrast between the perception of the ordinary buyer in the context of the Postal Service Act to those seen in the cases involving the FTC Act: The typical shopper inwho often marches into the market place armed with a current consumer report, would not be led astray by this assertion [of favorable test results of a product].
One is hard pressed to find advertisements today that fail to extol how well various products have fared in recent independent tests. I say the mind of the ordinary reader says maybe so and maybe no when it notes an advertiser report of favorable tests or studies. Intent Prior tothe Postal Service Act required a finding of fraudulent intent before an order could issue.
However, Congress passed an amendment in that eliminated any scienter requirement.
For one, the characterization of the relevant audience under the Lanham Act is usually of a relatively normal, if not astute, group of purchasers, eschewing the pejorative depictions favored by courts in opinions discussing the FTC Act.
The subject matter here is different [from outright false statements]. We are dealing not with statements which are literally or grammatically untrue. Rather, we are asked to determine whether a statement acknowledged to be literally true and grammatically correct nevertheless has a tendency to mislead, confuse or deceive.
If an advertisement is designed to impress. It may have personal reactions as to the defensibility or indefensibility of the deliberately manipulated words.
The question in such cases is — what does the person to whom the advertisement is addressed find to be the message? Intent The Lanham Act does not require any showing of intent.
This Part first examines the employment discrimination statutes and then the Fair Housing Act and analyzes the leading authorities interpreting each.Ambiguity and Confusion from the First Amendment.
In the First Amendment, it is stated that: Congress shall do no jurisprudence esteeming an constitution of faith, or forbiding the free exercising thereof ; or foreshortening the freedom of address, or of the imperativeness ; or the right of the people to peaceably to piece, and to petition the .
by the First Amendment. This article argues that increased judicial distrust of academic decision making, operating within a vague and confusing doctrinal creative ambiguity and slow movement toward a workable equilibrium, judicial Confusion reigns.
On Monday, the Supreme Court handed down Byrd v. United States, the Fourth Amendment case on whether an unauthorized driver has rights to challenge the search of a rental car.
|By Eugene Volokh on June 21, 4: I think my coblogger Ilya argued something similar in a series of posts in|
|The Seventh and Thirteenth Amendments, and Ambiguous Constitutional Text - The Volokh Conspiracy||Congress shall do no jurisprudence esteeming an constitution of faith, or forbiding the free exercising thereof ; or foreshortening the freedom of address, or of the imperativeness ; or the right of the people to peaceably to piece, and to petition the Government for a damages of grudges.|
|25th Amendment - HISTORY||A Right To Bear Arms? And if so, what kind of right is this?|
|InCongress removed the President Pro Tempore and the House Majority Leader from the line of succession and replaced them with members of the presidential cabinet in order of rank, beginning with the Secretary of State. Inthe 20th Amendment cleared the way for the vice-president elect to become president if the president-elect died or was debilitated.|
Regular readers may. Section 4 (first paragraph). in addition to the ambiguity of the text, And Section 4 spells out a process that is legally unclear. It’s likely that any discussion of the 25th Amendment. The Seventh and Thirteenth Amendments, and Ambiguous Constitutional Text By Eugene Volokh on June 21, pm in Constitutional Law, Constitutional Theory, Originalism “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the.
notes. lefemine v. wideman: entrenching judicial confusion and beckoning a more streamlined analysis of first amendment violations in the anti-abortion protest context.
blake lauren walsh. in.