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A Blurry Distinction with a Huge Difference: Commercial vs. Non-Commercial Speech
Imagine the following two scenarios, and try to figure out what the real difference is. First, your competitor blatantly lies in its advertising about the effectiveness of its products; second, your competitor blatantly lies to a reporter about the effectiveness of its products, and the reporter publishes the lies in an article or in a magazine. It seems like the same situation, but it is not. With the first, you could sue for false advertising because the advertisement is 'commercial' speech, whereas with the second, you cannot because the magazine article is 'non-commercial' speech. A similar difference is presented if a newspaper uses a picture of a celebrity without the celebrity's consent to highlight a news article, as opposed to a company using the same celebrity picture in a print advertisement, in the same newspaper, to promote the company. A breach of the celebrity's right of publicity claim is not available against the newspaper because the news article is 'non-commercial,' but is available against the company because the print advertisement is 'commercial.' The rationale for both is that while the First Amendment fully protects 'non-commercial' speech, it protects 'commercial' speech in a significantly limited way.
Moreover, with the explosion of media, communications, and advertising channels and techniques, it is ever more difficult to figure out the difference between 'commercial' and 'non-commercial' speech. The answer is extremely important because it usually determines whether one is liable for consumer fraud, false advertising, and for right of publicity claims. In today's world, corporations communicate in many different ways and through numerous media channels, including not just television and radio, but also press releases, industry and trade publications, Web sites, e-mail newsletters, 'magalogs,' and corporate blogs. 'Buzz,' 'word of mouth,' or 'viral' marketing is now popular, where corporations surreptitiously hire consumers to rave about their products to friends and acquaintances. Companies are even paying ostensibly independent bloggers to mention or review their products and services. And, advertisers are now becoming publishers in their own right, for example, with the new online channel Bud.tv.
Unfortunately, no bright-line rule for making the distinction between 'commercial' and 'non-commercial' speech exists, and no less an authority than the Supreme Court recognized the difficulty of the question. However, the most frequently cited definition of commercial speech is 'speech proposing a commercial transaction.' Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n., 447 U.S. 557 (1980). Whether speech 'proposes a commercial transaction' or not is always going to be a fact-specific inquiry. The following cases highlight the difficulties.
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