Other Mixed-Content Cases

Hunter v. Virginia State Bar, No. 121472, (Supr. Ct. of VA, Feb. 28, 2013).  In Hunter, the Virginia Supreme Court found that a lawyer’s blog was commercial enough to tip over into being considered advertising.  For an in-depth look at this case, see the “Blawging vs. Flawging” section.

United States v. Coronia, 703 F.3d 149 (2nd Cir. 2012).  Alfred Coronia, a pharmaceutical sales rep, had conversations with doctors about potential off-label uses of the drug Xyrem. Coronia was subsequently convicted of violating the Food, Drug and Cosmetic Act, which prohibits the marketing of pharmaceuticals for treatments other than those for which a drug has received regulatory approval.  The Second Circuit overturned his conviction, finding it violated Coronia’s First Amendment right to communicate truthful information to physicians.  Unfortunately, the court did not reach a conclusion about whether intermediate or strict scrutiny applied, finding (as the Supreme Court did in Sorrell) that the application of the regulation failed under even the lesser standard.

Holtzman v. Turza ___ F.3d ___ (7th Cir. 2013).  It turns out that appending editorial content onto an advertisement will not render the whole thing non-commercial – as attorney Gregory Turza discovered when he ended up on the hook for more than $4 million in damages for sending unsolicited faxes.

Stutzman v. Armstrong (E.D. CA 2013).  In the early 2000’s, Lance Armstrong was an inspiration, coming back from cancer to win 7 straight Tour de France bicycle races.  He wrote several wildly popular books about the experience – books that ultimately turned out to be full of lies about Armstrong’s use of performance-enhancing drugs.  This case sought damages on a variety of state law theories for the deceit in the books, and the plaintiffs argued that the commercial speech doctrine should apply.  The court dismissed the complaint under California’s anti-SLAPP statute, and noted on the commercial speech argument that “no one involved in modern jurisprudence can reasonably dispute that the content of [Armstrong’s] books is entitled to the full protection of the First Amendment.”

Jordan v.  Jewel Food Stores (7rd. Cir. 2014).   On the occasion of NBA legend Michael Jordan’s induction into the NBA Hall of Fame, Jewel Foods ran a congratulatory ad in a special edition of Sports Illustrated.  Jordan  took offense, and sued for $5M alleging publicity rights violations.   While Jewel prevailed at the District Court level, arguing that its ad was not commercial speech, the 7th Circuit reversed, finding that it was.  The opinion has a nice discussion of how the commercial speech doctrine works in edge cases like this.  And although Jordan’s suit seems mean-spirited and petty, it’s not hard to look at the ad itself and see why the 7th Circuit found it to be “image advertising” subject to the commercial speech doctrine.

Jordan v Jewel


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