News & Analysis as of September 24, 2024

Free Speech

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The First Amendment to the United States Constitution prohibits the government from making laws respecting the establishment of religion, prohibiting the free exercise of religion, abridging the freedom of speech or the press, preventing citizens from peacefully assembling, or interfering with citizens' ability to petition the government for redress of their grievances. The First Amendment is one of the most sacred aspects of the American legal tradition and has spawned a vast body of jurisprudence and commentary. less -

Maryland’s Digital Advertising Tax Survives First Amendment Challenge (For Now)

Blank Rome LLP on 8/19/2024

On July 3, 2024, the U.S. District Court for the District of Maryland dismissed a First Amendment challenge to Maryland’s Digital Advertising Gross Revenues Tax (the “Tax”) holding that while a provision in the Tax scheme...more

Assessing and Mitigating Legal Risk: Emerging Trends and Challenges to the PLCAA

Williams Mullen on 12/7/2022

Recent developments may cause firearms manufacturers to reevaluate their business and marketing practices to lessen their legal exposure. As we wrote previously, the Protection of Lawful Commerce in Arms Act (PLCAA) provides...more

[Podcast] You Can Say That, But It Will Cost You - The 1st Amendment and State Taxation

BakerHostetler on 11/17/2021

Maryland and Ohio courts disagree on whether taxing billboards violates the 1st amendment. Will the Supreme Court weigh in? How will this affect the surge of interest in targeted taxes on digital advertising? Matt Hunsaker...more

Ohio Supreme Court Strikes Down Billboard Tax as Unconstitutional

Keating Muething & Klekamp PLL on 9/30/2021

The Ohio Supreme Court recently struck down a billboard tax as unconstitutional in Lamar Advantage GP Co., LLC v. Cincinnati, Slip Opinion No. 2021-Ohio-3155. The case evaluated an excise tax placed on the installing,...more

AD-ttorneys@law – October 2020 #4

BakerHostetler on 10/27/2020

Supremes Deny Energy Drink Company’s First Amendment Petition - 5-Hour Energy drink maker asks to pour unsubstantiated claims down the drain - Free Speech Spotting - Not too long ago, we covered a dustup between a state...more

An Extraordinary Smackdown of an Ordinary Sign Ordinance

Best Best & Krieger LLP on 9/18/2020

Court Invalidates Common Sign Ordinance on First Amendment Grounds - A federal appeals court cited the First Amendment in invalidating some portions of the City of Troy, Mich.’s sign ordinance that are very common to many...more

Eighth Circuit Serves Another Round of First Amendment Protection for Alcohol Advertising

Patterson Belknap Webb & Tyler LLP on 3/18/2020

Food and beverage advertising, like other forms of speech, is usually entitled to First Amendment protection – even if it may not always enjoy the same caliber of protection as, for example, journalism or political speech. ...more

Beer Businesses Strike State Law Showing it Unconstitutionally Interferes with Their Commercial Free Speech Rights

Mitchell, Williams, Selig, Gates & Woodyard,... on 1/21/2020

The Eighth Circuit Court of Appeals recently upheld a District Court’s decision to strike down a state law that placed severe restrictions on alcohol advertising. For example, under the law, Joe’s Bar could run the ad, “Drink...more

Free Speech Triumphs in Transit Advertisements

Tucker Arensberg, P.C. on 1/6/2020

Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System, 938 F.3d 424 (3d Cir. Sept. 17, 2019) (United States Court of Appeals for the Third Circuit held that County transit system’s rejection of...more

Celebrity Entertainer Sues Over Video Game Avatar

Sheppard Mullin Richter & Hampton LLP on 8/25/2019

As real-world celebrities continue to expand the reach of their persona into the digital realm, the potential benefit for advertisers, game developers and esports event promoters is exceedingly high. But with increased...more

5 Key Takeaways: Advertising and Technology: Reaching Consumers in a Digital World

Kilpatrick on 8/7/2019

Barry M. Benjamin, partner in the New York office and chair of Kilpatrick Townsend’s Advertising and Marketing group, was honored to present at a recent Practicing Law Institute Bridge the Gap program discussing legal issues...more

Municipality’s Retaliation against Newspaper for Unfavorable Press Leads to Civil Rights Claim

Tucker Arensberg, P.C. on 6/12/2019

Press and Journal, Inc. v. Borough of Middletown, Civil Action No. 1:18-CV-2064 (M.D. Pa. 2018) (Borough faces a civil rights claim for retaliation against newspaper for unfavorable press coverage). BACKGROUND - The...more

Social Links: Suit over “embedded tweet” with Tom Brady’s photo settles; brand agency manipulates Wikipedia; evidence from...

Morrison & Foerster LLP - Social Media on 6/11/2019

In March Socially Aware reported on a lawsuit involving several prominent news outlets’ publication of a photo of NFL quarterback Tom Brady on Twitter. The case had the potential to upend a copyright and Internet-law rule...more

HHS to Require Manufacturers to Disclose Drug Pricing in Television Advertisements

Troutman Pepper on 5/13/2019

U.S. health officials have taken the first concrete step toward implementing the vision set out in the “American Patients First” blueprint published by President Trump and Health and Human Services (HHS) Secretary Alex Azar...more

Social Links: An EU law to protect copyright owners online; collecting biometric data without running afoul of the law;...

Morrison & Foerster LLP - Social Media on 4/17/2019

A new law in Australia makes a social media company’s failure to remove “abhorrent violent material” from its platform punishable by significant fines. The law also states that the executives at social media companies who...more

Washington Court of Appeals Upholds Multi-Million Dollar Fine for 5-Hour Energy Advertising Claims

McDermott Will & Emery on 4/4/2019

On March 18, 2019, the Washington Court of Appeals upheld a trial court’s decision that three advertising campaigns for 5-Hour Energy® made by Living Essentials, LLP and Innovative Ventures, LLP (collectively, Living...more

Federal Court Blocks Maryland's Online Political Ad Law Under First Amendment

Ballard Spahr LLP on 1/7/2019

In a 50-page opinion and order issued recently, a Maryland federal court ruled in favor of a coalition of Maryland and Washington, D.C.-based news organizations on their challenge to a Maryland law that would have placed...more

Speech Is Speech And It’s Protected - Tori Hester Analyzes Ninth Circuit First Amendment Ruling For Public Agencies In PublicCEO

Best Best & Krieger LLP on 12/3/2018

A recent decision from the Ninth Circuit U.S. Court of Appeals offers a key reminder for public agencies: Even within a nonpublic forum, an individual’s and/or community’s Constitutionally protected freedom of speech cannot...more

Following SCOTUS’ Lead, the Ninth Circuit Strikes Down a Ban on “Disparaging” Ads

Robins Kaplan LLP on 10/18/2018

A three-judge panel of the Ninth Circuit has ruled that Seattle violated the First Amendment by banning “disparaging” ads on city buses....more

Public Bus Ad Gets A Free Ride - County Cannot Prohibit Ad Content Solely Because It’s Disparaging Or Potentially Disruptive,...

Best Best & Krieger LLP on 10/12/2018

A county violated the First Amendment by refusing to display an advertisement related to global terrorism on its public buses, the U.S. Ninth Circuit Court of Appeals held....more

Ninth Circuit Extends Tam 1st Amendment Protections to Advertising

Akerman LLP - Marks, Works & Secrets on 10/9/2018

The Ninth Circuit extended the First Amendment protections enunciated by the Supreme Court in Matal v. Tam, 137 S.Ct. 1744 (2017) to advertising in American Freedom Defense Initiative, et al. v. King County (9th Cir. Sept....more

Ninth Circuit Holds County’s Advertising Restriction on “Disparaging Material” Unconstitutional

Snell & Wilmer on 10/4/2018

The Ninth Circuit held yesterday in American Freedom Defense Initiative v. King County that a county’s advertising program on public buses that rejected advertisements on the basis of disparaging material violates the First...more

Justice (and Lunch) is Served: Second Circuit Holds that Food Truck Branded with Ethnic Slurs is Entitled to First Amendment...

Proskauer - Advertising Law on 1/19/2018

In a recently issued decision, the Second Circuit held that a food truck could not be excluded from a New York State lunch program solely because the truck and the food it sells was branded using ethnic slurs. Wandering Dago,...more

Food Advertising And Compelled Commercial Speech In 2017

Foley Hoag LLP - Making Your Mark on 12/12/2017

According to the Hyper-Chicken, a lawyer from my favorite television show, “freedom of speech applies to what comes out of a mouth, not what goes in.” State of Alabama v. Giant Space Iguana, 273 U.S. O (2976) (chewing corners...more

Ninth Circuit Blocks San Francisco’s Warnings Ordinance for Sweetened Beverages

BCLP on 10/4/2017

In a decision likely to have important implications for regulation of commercial speech, the Ninth Circuit Court of Appeals has blocked a San Francisco ordinance requiring warnings about the health effects of certain...more

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