Every law student and attorney should begin their Constitutional research quest by asking this important first question: Can the government do this?
Placing advertising in the context of that question, can the government regulate advertisements? The answer to that question can be found in Article 1, Section 8, Clause 3 of the United States Constitution, which reads as follows: “The Congress shall have power … [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This provision which is colloquially referred to as the "Commerce Clause" has been used to infer that the Federal government, may in certain circumstances, exercise the power to regulate commerce which may include advertisements and promotional materials.
However, remember this is the law, so the most accurate answer, as always, is it depends. Look through the sections listed below to determine if the federal government can regulate a particular advertisement. Irrespective of that answer, don't forget about state laws, they may apply depending on your state, and may include additional regulations.
Order by the Federal Trade Commission prohibiting processed cheese manufacturer from running advertisements which misled consumers with regard to milk and calcium contents and requiring manufacturer to base future nutrient and calcium claims on reliable scientific evidence did not violate First Amendment; manufacturer was free to continue advertising milk and calcium content in its products and could avoid future violations by correcting misleading elements. Kraft, Inc. v. F.T.C., C.A.7 1992, 970 F.2d 311, certiorari denied 113 S.Ct. 1254, 507 U.S. 909, 122 L.Ed.2d 652.Antitrust And Trade Regulation
374Constitutional Law1645
There is no constitutional right to disseminate false or misleading advertisements. E.F. Drew & Co. v. Federal Trade Commission, C.A.2 1956, 235 F.2d 735, certiorari denied 77 S.Ct. 360, 352 U.S. 969, 1 L.Ed.2d 323.Constitutional Law1641
A medicinal products corporation has no constitutional right to disseminate false advertisements in interstate commerce for purpose of inducing purchase of its preparation as a treatment for obesity, and Congress has power to prohibit such dissemination. American Medicinal Products v. F.T.C., C.C.A. 9 1943, 136 F.2d 426.Antitrust And Trade Regulation222
*Source: Westlaw Next
Licensed broadcasting stations have right to choose programs. McIntire v. Wm. Penn Broadcasting Co. of Philadelphia, C.C.A.3 (Pa.) 1945, 151 F.2d 597, certiorari denied 66 S.Ct. 530, 327 U.S. 779, 90 L.Ed. 1007.Telecommunications1149
The right of the public to have broad access to television programming and the right of the broadcaster to disseminate should not be inhibited by those members of the public who are particularly sensitive or insensitive. Zamora v. Columbia Broadcasting System, S.D.Fla.1979, 480 F.Supp. 199.Telecommunications1149
Commercial or non-Commercial Television Government cannot control content or selection of programs to be broadcast over noncommercial television any more than it can control programs broadcast over commercial television. Community-Service Broadcasting of Mid-America, Inc. v. F. C. C., C.A.D.C.1978, 593 F.2d 1102, 192 U.S.App.D.C. 448.Telecommunications1149
Prime Time Access Rule
Prime time access rule did not constitute unlawful direct restraint on speech such as to violate U.S.C.A.Const. Amend. 1 or provision of this section prohibiting the Commission from interfering with right of free speech. National Ass'n of Independent Television Producers and Distributors v. F. C. C., C.A.2 1975, 516 F.2d 526.Constitutional Law2137Telecommunications1148
Radio Broadcasts
Interpreted as requiring scienter, this section is not violative of either U.S.C.A. Const. Amends. 1 or 5. U.S. v. Smith, C.A.7 (Ill.) 1972, 467 F.2d 1126.
This section providing that whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined or imprisoned or both was not facially unconstitutional because of vagueness of terms “indecent” or “profane.” Tallman v. U.S., C.A.7 (Ill.) 1972, 465 F.2d 282.
This section providing that whoever utters any obscene, indecent or profane language by means of radio communications shall be fined or imprisoned or both, is not unconstitutional as an attempt to exercise police power reserved to the states. Gagliardo v. U.S., C.A.9 (Nev.) 1966, 366 F.2d 720.
Federal Communications Commission's definition of statutory term “indecent,” as language or material that depicts or describes sexual or excretory activities and organs in terms patently offensive as measured by contemporary community standards for the broadcast media, is not unconstitutionally vague; nor is definition overbroad for failing to recognize serious merit as absolute defense to indecency. U.S. v. Evergreen Media Corp. of Chicago, AM, N.D.Ill.1993, 832 F.Supp. 1183.
Standards for Judging Obscenity
This section which makes it an offense to utter obscene, indecent or profane language by means of radio communication must be interpreted in the light of its statutory surroundings and of the history of judicial interpretation of the word “indecent” in other similar federal statutes. U.S. v. Simpson, C.A.7 (Ind.) 1977, 561 F.2d 53.
For purpose of defining what the public will be entitled to hear in the future in the broadcast of radio call-in programs, court of appeals would apply the “Miller” standard of obscenity concerning the purpose of the regulated material. Illinois Citizens Committee for Broadcasting v. F. C. C., C.A.D.C.1974, 515 F.2d 397, 169 U.S.App.D.C. 166.
Where defendant was tried solely for uttering obscene matter by means of radio communication, it was not necessary that the court define “indecent” or “profane” in prosecution under this section proscribing the uttering of any obscene, indecent or profane language by means of radio communication. Tallman v. U.S., C.A.7 (Ill.) 1972, 465 F.2d 282.
Federal Communications Commission properly determined that language of prerecorded monologue which was broadcast on afternoon radio program was indecent as broadcast, despite absence of prurient appeal. F. C. C. v. Pacifica Foundation, U.S.Dist.Col.1978, 98 S.Ct. 3026, 438 U.S. 726, 57 L.Ed.2d 1073, rehearing denied 99 S.Ct. 227, 439 U.S. 883, 58 L.Ed.2d 198.
Language used by defendant over citizens' band radio during moment of anger could not be viewed as a whole as appealing to the prurient or as calculated to arouse animal passions and language was not “obscene” within this section. Gagliardo v. U.S., C.A.9 (Nev.) 1966, 366 F.2d 720.
Use of “damn” and of the words “By God” in an irreverent sense, coupled with a threat to “put on the mantle of the Lord and call down the curse of God” on certain persons was profane language within former section 109 of Title 47. Duncan v. U.S., C.C.A.9 (Or.) 1931, 48 F.2d 128, certiorari denied 51 S.Ct. 656, 283 U.S. 863, 75 L.Ed. 1469.
Videotape containing descriptions and depictions of abortion was indecent under statute prohibiting broadcast of indecent material by means of radio communications; videotape depicted actual surgical procedure for abortion and contained graphic depictions and descriptions of female genitalia, uterus, excreted uterine fluid, dismembered fetal body parts and aborted fetuses, videotape would be readily understandable to children, would have negative impact on children, and would likely provoke strong negative public reaction. Gillett Communications of Atlanta, Inc. v. Becker, N.D.Ga.1992, 807 F.Supp. 757, appeal dismissed 5 F.3d 1500.
Federal Communications Commission (FCC) failed to supply notice of, and a reasoned explanation for, its departure from its policy to exempt fleeting material from scope of actionable indecency, and, thus, its imposition of monetary forfeiture for television network's live broadcast of female musical performer's exposed breast for nine-sixteenths of one second during Super Bowl halftime show was arbitrary and capricious; during three decades of its restrained enforcement policy for fleeting broadcast material, FCC never distinguished between fleeting expletives and fleeting images. CBS Corp. v. F.C.C., C.A.3 2011, 663 F.3d 122, certiorari denied 132 S.Ct. 2677, 183 L.Ed.2d 712.Telecommunications1155(1)
Federal Communications Commission (FCC) violated the due process rights of two television broadcasting networks by failing, before imposing sanctions, to give them fair notice that, in contrast to prior policy, a fleeting expletive or a brief shot of nudity could be actionably indecent; one of the networks broadcast fleeting expletives on two occasions, and the second broadcast a seven second display of the nude buttocks of an actress, as well as a shorter glimpse of one side of her breast. F.C.C. v. Fox Television Stations, Inc., U.S.2012, 132 S.Ct. 2307, 183 L.Ed.2d 234, on remand 475 Fed.Appx. 796, 2012 WL 3104430.Constitutional Law4370Telecommunications1155(1)
