Essay: Legal Memoranda Statement of Facts

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[. . .] Recommendations

Depending on the level of funding available for promoting medical marijuana and its legalization, AAI can invest in this issue in a number of ways. Since medical marijuana is not legal within the U.S., funding should be directed towards a public information campaign to raise awareness of this issue. This can be done through the mailings, email, online websites and advertising, newspaper ads, and television and radio ads. Candidates that support the legalization of medical marijuana can also be supported through advertising and/or through direct contributions via a PAC. If there seems to be some interest by members of Congress to legalize marijuana for medical use, then lobbying efforts may prove beneficial.

Memorandum

To: Professor's Name

Re:

Date: October 25, 2013

Statement of Facts

The manufacture of the recreational vehicle Liferisk has been barred from advertising in the United States by Congress for safety reasons only. Liferisk has sought relief in federal court by arguing that the anti-Liferisk law is unconstitutional.

Issues

The main issue is whether corporations enjoy a constitutionally protected right to advertise and whether Congress can limit this right. The Supreme Court held in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) that corporations have limited speech protections under the First Amendment, primarily because consumers have a right to information about products before making purchases. For this reason, commercial advertising is not treated as equivalent to political speech by federal courts, but enjoys a lower status more susceptible to legislative intervention.

An example of when commercial speech is susceptible to government regulation is when the advertising is substantially false and/or misleading. The courts have repeatedly affirmed Congress' right to restrict or ban this kind of advertising; however, the ads for Liferisk were neither misleading nor false. Congress has also been given the green light by federal courts to demand that advertisements carry disclaimers, warnings, and other statements that minimize the risk of misleading consumers. This issue is not relevant because Congress enacted an outright ban on Liferisk ads.

A four-part test was created in a later ruling by the Supreme Court for determining whether legislation regulating commercial advertising is constitutional (Central Hudson Gas & Electric Corporation v. Public Service Commission, 1980). The first test considers whether the advertising promotes a legal product or service and is accurate. The recreational vehicle is a legal product in the United States and the Liferisk ads are accurate, so the advertising for Liferisk enjoys limited First Amendment protection. In addition, the Liferisk advertising also meets the requirement for being purely commercial.

The second test considers whether the government has a "… legitimate or substantial interest" in regulating commercial advertising for Liferisk vehicles. Federal courts have supported the right of the government to regulate commercial advertising when the public's health, safety, morals, or aesthetic interests are directly impacted. In Posadas de Puerto Rico Associates v. Tourism Company (1986) the Supreme Court upheld the government's interest in discouraging gambling by deciding not to overturn a local ban on billboards promoting casinos. In contrast though, alcohol advertising was protected by the Supreme Court in Liquomart, Inc. v. Rhode Island (1996). Given that alcohol is widely recognized as a significant, direct contributor to vehicular deaths, it is not clear whether Liferisk advertising would viewed as equivalent to casino or alcohol advertising.

The third test for determining whether the government has a right to regulate advertising for a product or service is whether there is a clear and direct connection between state interests and the advertising. In Liquomart, Inc. The Supreme Court ruled that the Rhode Island ban on the advertising of alcohol prices was unconstitutional because the government could not demonstrate that such advertising would lead to greater alcohol consumption.

The fourth and final test is whether the regulation is overly broad for achieving the government's interest. The ban on alcohol prices in Rhode Island was judged to be overly broad by the Supreme Court, in part because discouraging alcohol consumption can be achieved in so many other ways. The Court pointed out that alcohol could be banned entirely or taxed heavily, but banning advertising infringes upon the First Amendment rights.

Relevant Statutes

State laws and the Federal Trade Commission Act of 1914 established truth in advertising statutes, which permit state and federal legislative bodies to pass laws that restrict or ban false or misleading advertising. The First Amendment provides limited protection for commercial speech.

Relevant Jurisprudence

The Supreme Court in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) ruled that commercial advertising for purely commercial purposes constituted a form of speech protected by the First Amendment. The Supreme Court established the four-part test to determine the constitutionality of commercial advertising regulations in Central Hudson Gas & Electric Corporation v. Public Service Commission (1980).

Conclusion

The four-part test established by the Supreme Court in Central Hudson, when applied to Liferisk advertising, would probably determine that this advertising is protected by the First Amendment. The deaths attributed to Liferisk use, however, would also establish a direct connection between Liferisk use and public safety and therefore establish a legitimate government interest in regulating this advertising. An outright ban on advertising, however, would likely be viewed by federal courts as overly broad and therefore unconstitutional.

Recommendations

The outright ban on Liferisk advertising is unconstitutional under the Supreme Court's ruling in Central Hudson because it is overly broad. However, the court should make clear the distinction the Supreme Court has repeatedly made between protected commercial speech and the government's interests in removing dangerous… [END OF PREVIEW]

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"Legal Memoranda Statement of Facts."  Essaytown.com.  October 17, 2013.  Accessed March 23, 2019.
https://www.essaytown.com/subjects/paper/legal-memoranda-statement-facts/7996658.