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Fighting Freestyle: The First Amendment, Fairness and Corporate Reputation

25 Pages Posted: 1 Dec 2009 Last revised: 3 Apr 2014

Rebecca Tushnet

Harvard Law School

Date Written: December 1, 2009

Abstract

There are three distinct groups who might want to engage in speech about commercial entities or to constrain those commercial entities from making particular claims of their own. Competitors may sue each other for false advertising, consumers may sue businesses, and government regulators may impose requirements on what businesses must and may not say. In this context, this Article will evaluate a facially persuasive but ultimately misguided claim about corporate speech: that because consumers regularly get to say nasty things about corporations under the lax standards governing defamation of public figures, corporations must be free to make factual claims subject only to defamation-type restrictions on intentionally false statements. The premise that this would further equality ignores the overall structure of advertising law, in which consumers cannot be equated to advertisers, competitors are already on equal footing with one another, and the government as regulator is not supposed to be on equal footing with anyone.

Keywords: first amendment, commercial speech, Nike v. Kasky

JEL Classification: M37, K22, D12, D18

Suggested Citation

Tushnet, Rebecca, Fighting Freestyle: The First Amendment, Fairness and Corporate Reputation (December 1, 2009). Boston College Law Review, Vol. 50, No. 1, p. 1457, 2009; Georgetown Public Law Research Paper No. 1516389. Available at SSRN: https://ssrn.com/abstract=1516389

Rebecca Tushnet (Contact Author)

Harvard Law School ( email )

Cambridge, MA
United States

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