Advertising and Public Relations Law Addressing a critical need, Advertising and Public Relations Law explores the issues and ideas that affect the regulation of advertising and public relations speech. Coverage includes the categorization of different kinds of speech afforded varying levels of First Amendment protection; court-created tests for laws and reg- ulations of speech; and non-content-based restrictions on speech and expression. Features of this edition include: • A discussion in each chapter of new-media implications • Extended excerpts from major court decisions • Appendices providing — a chart of the judicial system — a summary of the judicial process — an overview of alternative dispute resolution mechanisms — the professional codes for media industry and business associations, including the American Association of Advertising Agencies, the Public Relations Society of America and the Society of Professional Journalists • Online resources for instructors. The volume is developed for upper-level undergraduate and graduate students in media, advertising and public relations law or regulation courses. It also serves as an essential reference for advertising and public relations practitioners. Roy L. Moore is professor of journalism and dean of the College of Mass Communication at Middle Tennessee State University. He holds a Ph.D. in mass communication from the University of Wisconsin and a juris doctorate from the Georgia State University College of Law. Carmen Maye is a South Carolina-based lawyer and an instructor in the School of Journalism and Mass Communications at the University of South Carolina, where she teaches courses in media law and advertising. Her undergraduate degree is from the University of North Carolina at Chapel Hill. Her master's and juris doctorate degrees are from the University of South Carolina. Erik L. Collins is the associate director for graduate studies and research in the School of Journalism and Mass Communications at the University of South Carolina. He teaches courses in media law, mass communication research methods and integrated communications management. Dr. Collins holds a Ph.D. from the Newhouse School of Public Communications, Syracuse University, and a juris doctorate from the Ohio State University School of Law. Instructor materials are available on this book’s web page at www. routledge.com Communication Series General Editors Jennings Bryant and Dolf Zillmann Selected titles include: Strategic Public Relations Management Planning and Managing Effective Communication Programs (Second Edition) E. W. Austin & B. E. Pinkleton Gaining Influence in Public Relations The Role of Resistance in Practice B. K. Berger & B. H. Reber Crisis Management by Apology Corporate Response to Allegations of Wrongdoing K. M. Hearit Applied Public Relations Cases in Stakeholder Management L. F. Lamb & K. B. McKee Agenda Setting Readings on Media, Public Opinion, and Policymaking D. Protess & M. E. McCombs Advertising and Public Relations Law Second Edition Roy L. Moore, Carmen Maye and Erik L. Collins First edition published 1998 by Lawrence Erlbaum Associates, Inc. This edition published 2011 by Routledge 270 Madison Avenue, New York, NY 10016 Simultaneously published in the UK by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN This edition published in the Taylor & Francis e-Library, 2010. To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk. Routledge is an imprint of the Taylor & Francis Group, an informa business © 1998 Lawrence Erlbaum Associates © 2011 Taylor & Francis All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data Moore, Roy L. Advertising and public relations law / Roy L. Moore, Carmen Maye, Erik L. Collins. — 2nd ed. p. cm. Includes bibliographical references. Advertising laws—United States. 2. Public relations and law— United States. I. Maye, Carmen. II. Collins, Erik. III. Title. KF1614.M66 2010 343.73'082—dc22 2010010838 ISBN 0-203-84587-0 Master e-book ISBN ISBN13: 978–0–8058–5346–9 (hbk) ISBN13: 978–0–415–96548–4 (pbk) ISBN13: 978–0–203–84587–5 (ebk) This book is dedicated in memory of Essie and Lila and to Pam, Derek and Michelle; to Sidney, Archie and Earnie; and to Lilly and Lolly. Contents Preface ix Acknowledgments xi 1 The First Amendment 1 2 The Development of the Commercial Speech Doctrine 18 3 Public Interest Information as Commercial Speech 55 4 Defamation, Product Disparagement and Related Torts 85 5 Invasion of Privacy: False Light, Private Facts, Intrusion and Other Related Torts 112 6 Invasion of Privacy: Misappropriation and Right of Publicity 151 7 Copyright 171 8 Patents and Trademarks 208 9 Other Ways to Protect “Ideas” 221 10 The Federal Trade Commission, the Food and Drug Administration and the Securities and Exchange Commission 235 11 Other Federal and State Regulation of Commercial Speech 284 12 Access to Information, Free Press/Fair Trial, Journalist Privilege and Other Issues Related to News Gathering/ Dissemination 303 viii Contents Appendices A The Constitution of the United States 335 B The United States Court System 357 C Professional Codes of Ethics 359 C.1 Public Relations Society of America (PRSA) Code of Ethics 360 C.2 The American Association of Advertising Agencies (AAAA) Standards of Practice 367 C.3 The Outdoor Advertising Association of America (OAAA) Code of Industry Principles 369 C.4 Better Business Bureau (BBB) Code of Advertising 372 C.5 Children’s Advertising Review Unit (CARU) of the National Advertising Division of the Council of Better Business Bureaus Self-Regulatory Guidelines 385 C.6 Direct Marketing Association’s (DMA) Guidelines for Ethical Business Practice 387 C.7 Society of Professional Journalists (SPJ) Code of Ethics 417 C.8 Radio Television Digital News Association 420 D Sample Model Release Forms 425 E Sample Copyright Agreements 429 Notes 432 Table of Cases 460 Index 464 Preface In the early days of the twentieth century, the original curriculum of the world’s first school of journalism included a required course in communi- cation law. The class dealt with libel and, to a substantial degree, with postal regulations. That made sense at the time: 85 percent of all journal- ism graduates went to work for community newspapers, and an under- standing of law affecting the mail was important. Today, we operate in a mass-media environment. Advertising and pub- lic relations professionals, and those hoping to enter the professional world, not only need to possess many of the same skills as traditional jour- nalists, but also need to learn a great deal about public opinion and human behavior, management techniques and strategic problem solving. And, as was the case with those pioneering journalists nearly a century ago, today’s advertising and public relations professionals must be aware of the laws and jurisprudence affecting their chosen fields. Some of the legal issues facing journalists equally affect advertising and public relations professionals. However, many other law-related issues and concerns of those in the advertising and public relations professions are different from those of editors and reporters. Designed to serve both the practitioner and the student, this second edition of Advertising and Public Relations Law addresses this wide range of legal topics. Although there are some excellent general media law texts available, none has been developed to the extent this one has to reflect the distinctive needs of advertising and public relations professionals and aspiring pro- fessionals. Some of the specific differences you will notice are (a) two entire chapters devoted to the commercial speech doctrine, including its history and development; (b) separate chapters on public-interest speech, patents and trademarks, and trade secrets and business schemes; (c) extensive dis- cussions of how federal agencies beyond the Federal Trade Commission regulate advertising and product promotion; (d) two chapters focusing on privacy rights and concerns; and (e) an appendix with model release forms, professional codes of ethics, a diagram of the United States court system and a copy of the United States Constitution. Our concluding chapter x Preface deals with traditional journalistic concerns such as privilege, free-press- versus-fair-trial issues and access. Readers also will note a chapter-by- chapter discussion of the effects of new media and breakthroughs in digital information technologies in terms of how they impact the laws and regu- lations governing advertising and public relations. Lawyers sometimes characterize seemingly unimportant, minute differ- entiations of facts or law as “distinctions without a difference.” We believe you will find this volume, in comparison with others on the topic, a dis- tinction with a difference. We hope that practitioners and students alike will find our efforts interesting, enjoyable and, most of all, highly inform- ative. Acknowledgments Many individuals contributed to the completion of this