All Native Advertising Is Not Equal: Why That Matters Under The First Amendment And Why It Should Matter To The FTC – Part IV

In this five part series, originally published in the Summer 2014 edition of the Media Law Resource Center Bulletin,1we take an in-depth look at the native advertising phenomenon and the legal issues surrounding the practice. After canvassing the many faces of native advertising and the applicable law, the series ultimately examines the pervasive assumption that all native advertising is, and should be regulated as, "commercial speech." This assumption presumes that all native advertising is equal under the eyes of the law, and we come to the conclusion that it probably isn't. Native advertising that is closer to pure content than pure commercial speech may deserve greater or even full First Amendment protection, which would carry significant implications for government regulation2.

Part 1: Introduction to Native Advertising

Part 2: Early Native Advertising and the Current FTC Regulatory Landscape

Part 3: Evolution of the Commercial Speech Doctrine

Part 4 below examines the important legal distinction between "Commercial Speech" and "Non-Commercial / Inextricably Intertwined Speech"

—PART IV—

Commercial and Noncommercial Inextricably Intertwined Speech

The Bolger court found that the mailings constituted commercial speech "notwithstanding the fact that [informational pamphlets] contain[ed] discussions of important public issues."3 Advertising that "links a product to a current public debate" is not automatically transformed into constitutionally protected noncommercial speech.4 This is because "a company has the full panoply of protections available to its direct comments on public issues, so there is no reason for providing similar constitutional protection when such statements are made in the context of commercial transactions."5 And in that circumstance, "advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues."6

But by the same token, the Supreme Court has clearly held that when commercial speech is "inextricably intertwined with otherwise fully protected speech," courts "cannot parcel out the speech, applying one test to one phrase and another test to another phrase."7 In those cases, the Court applies its test for fully protected speech.8 For instance, in Riley v. National Federation of the Blind of North Carolina, the Court held that paid professional charity solicitations were fully protected First Amendment speech because the commercial aspects of the solicitations could not be disentangled from the content of the charitable program.9 As the plurality explained in 44 Liquormart v. Long Island, when striking down a State's ban on liquor advertising, a "State's power to regulate commercial transactions justifies its concomitant power to regulate commercial speech that is 'linked inextricably' to those transactions."10 But the "State retains less regulatory authority when...