June 5 Monday

Abrams Institute for Freedom of Expression: Creeping Commercial Speech

  • Monday, June 5, 2017 at 8:30AM - 2:30PM
  • Patterson Belnap Webb & Tyler LLP, 1133 6th Ave #22 ,New York, NY 10036
  • Open To The Yale Community
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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. 

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

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

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

Funding provided by:  

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

Sponsoring Organization(s)

Abrams, ISP