The Creep and Its Impact (2017)


Please join us for a conference on the pursuit of a definition of “commercial speech” and a multi-faceted look at how the absence of a coherent definition impacts First Amendment protections with regards to the content creation community, creativity in advertising, and other areas of corporate speech. 

8:00 – 8:45      Registration and Coffee

8:45 – 9:00      Welcome and Introductions

9:00 – 9:45      Opening Conversation

Jason DeLand, Founding Partner of Anomaly, and Shawn Flowers, Deputy Counsel, Time Inc., will consider what “commercial speech” is to those who pay to create and disseminate it and to the media that rely on it for their existence.

10:00 – 11:15 The Creep and its Impact

In the absence of a considered or even consistent definition of “commercial speech,” regulators and legislatures continue to limit speech by classifying it as commercial. Consider Kasky v. Nike versus Citizens United, Sorrell and Reed: what scrutiny is to be applied in evaluating the constitutionality of speech regulation? How are courts applying Reed and Sorrell in judicial review of statutes and regulations abridging freedom of speech?

  • Jack Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School
  • Steven G. Brody, Partner, Morgan, Lewis & Bockius LLP
  • Jonathan Donnellan, Vice President and Deputy General Counsel, Hearst Corporation
  • David Vladeck, A.B. Chettle, Jr., Professor of Law, Georgetown University Law Center
  • Moderated by Bruce Johnson, Partner, Davis Wright Tremaine LLP

11:30 – 12:45  Right of Publicity

The expansion of right of publicity claims against content classified as “commercial speech” poses a substantial chilling effect on free speech. The opportunity to punish speech through litigation costs and runaway damage awards against speech or speakers that are disfavored or unpopular is exploding. Meanwhile, increasing concerns for individual privacy are expanding claims for commercial appropriation of identity against creators of content in a variety of genres and new media. Is there a definition of “commercial speech” that might put boundaries on these claims and that the Supreme Court might adopt? 

  • Jennifer Rothman, Professor of Law and Joseph Scott Fellow, Loyola Law School (Los Angeles), Loyola Marymount University
  • Katherine Surprenant, General Counsel, National Media & Marketing, Meredith Corporation
  • Alonzo Wickers, Partner, Davis Wright Tremaine LLP
  • Moderated by Rick Kurnit, Partner, Frankfurt Kurnit Klein & Selz PC

12:45 – 1:15    Lunch

1:15 – 2:30      Beyond “Native Advertising”

As media try to stay both economically and editorially relevant, they are creating new business models and formats both for their own content and for that of advertisers and brands. Where do these new models and formats fit within First Amendment analysis? Will the creep of commercial speech regulation inhibit or even make them untenable? And can the framework for commercial speech regulation be stretched to cover fake news?

  • Eric Goldman, Professor, Santa Clara University School of Law
  • David Perpich, President and General Manager of the Wirecutter
  • Tamara Piety, Professor of Law, University of Tulsa College of Law
  • Moderated by Scott Dailard, Partner, Cooley LLP

We want to thank Patterson Belknap Webb & Tyler LLP for agreeing to host this year.

Funding for the conference was provided by:  

  • Avvo, Inc.
  • Cooley LLP
  • Davis Wright Tremaine LLP
  • Fox Rothschild LLP
  • Frankfurt Kurnit Klein & Selz PC
  • Levine Sullivan Koch & Schulz, LLP    

Planning Committee:  Sandra S. Baron, Abrams Institute for Freedom of Expression, Yale Law School; Chris Beall, Fox Rothchild LLP; Scott Dailard, Cooley LLP; Bruce Johnson, Davis Wright Tremaine LLP; and Rick Kurnit, Frankfurt Kurnit Klein & Selz PC.  


Jack Balkin, Cultural Democracy and the First Amendment

Brown v. Electronic Arts Inc., MPAA Amicus Brief in Support of Electronic Arts 

Brown v. Electronic Arts Inc., Respondent's Brief

Electronic Arts Inc., v. Brown, Appellant's Reply Brief

Electronic Arts Inc., v. Brown, Appellant's Opening Brief

Expressions Hair Design V. Eric T. Schneiderman, Amici Brief of Constitutional Administrative, Contracts and Health Law Scholars in Support of Respondents

Bruce Johnson, First Amendment Commercial Speech Protections

Leslie Kendrick, First Amendment Expansion

Rick Kurnit, Right of Publicity Claims and Brand Integration

Rick Kurnit, Defining Native Advertising

NYT v. Sullivan as a Commercial Appropriation Claim

Tamara Piety, Killing the Golden Goose: Will Blended Advertising and Editorial Content Diminish the Value of Both?

Robert Post, Amanda Shanor, Adam Smith’s First Amendment

Jennifer Rothman, Commercial Speech, Commercial Use and the Intellectual Property Quagmire

Amanda Shanor, The New Lochner

David Vladeck, Nike v. Kasky Reconsidered 

Morgan Weiland, Expanding the Periphery and Threat of the Core: The Ascendant Libertarian Speech Tradition