Political Advertisements, Lies, and the Lanham Act
Jonathan Pollard
![Jonathan Pollard]()
Jonathan Pollard
Lawyer. Non-Compete Defense. Trade Secrets. Partnership Breakups. Civil Rights. Defamation.
Here's a crazy thought: Private parties can use the Lanham Act to attack fake political advertisements. I know: The immediate reaction is that the Lanham Act somehow does not apply. That political speech exists in this separate, magical universe where it is immune from any legal attack. But that's simply not how this works. Let me explain:
- There's tons of money in politics and particularly in elections and campaigns. For the 2020 election cycle, there will be $6 billion spent on political advertising. This is not the America of our founding fathers or the Lincoln-Douglas debates. Let's cut the feel good bullshit. Politics is big business. Media companies. Advertisements. Pollsters. Consultants. Fundraisers. Private jets. This is a market.
- Let's fully embrace the fiction of FEC regulations and run with it. All this money is flowing in and out of PACs and Super-PACs. By law, Super-PACs cannot coordinate directly with candidates or campaigns. So good luck arguing that we can't litigate over Super-PAC advertisements without somehow infringing upon candidate speech.
- Back to the Lanham Act. I've said it before and I'll say it again: The Lanham Act is one of the most poorly understood and underutilized tools in the toolkit. Lots of people - including lawyers - assume that the Lanham Act only applies in trademark cases. Dead wrong. The Lanham Act also applies to false advertising. We are dealing with commercial speech. In interstate commerce. Lots of market actors within the zone of influence. Factually false advertisements about a particular candidate, bought and paid for by big political money, designed to raise more money for a particular Super PAC are plausible Lanham Act violations. These dueling entities spend so much money on EVERYTHING, they might as well ad Lanham Act false advertising lawsuits to the tool kit.
Medical malpractice attorney licensed in DC, MD, and VA. I handle cases in those states and across the country. Email is the best way to reach me: [email protected]
5 年Cool idea, but what about these decisions:? Nichols v. Club for Growth Action, 235 F. Supp. 3d 289, 298 (D.D.C. 2017);? Farah v. Esquire Magazine, Inc., 863 F.Supp.2d 29, 40 (D.D.C. 2012) (Farah I ) (collecting cases holding Lanham Act only applicable to commercial speech). Not sure the claims are viable in D.C.
Principal, Golden Parachute Tax Solutions LLC
5 年If this act were used in the context of political races it would be one of the biggest dangers to free speech this country has ever seen. Simply put , the US Constitution provides specifically Congress shall make no law...abridging free speech. To that end, there is no “truth” standard. For the founders likely understood that those who decide what is truth are not infallible and could be dangerous. The United States political process has endured plenty false advertisements and outright lies, almost from its founding. One only need to research the name Jeffrey Callender or Alien and Sedition Acts to understand the prevalence and poorly conceived remedies. As for the process and money (effectively arguing the Citizens United Case) the Supreme Court was correct, and frankly it scares me it was even a close call. The founders understood very well, Madison in particular, that the best way to calm the mob or factions (as he used both terms) was to allow such as much freedom as possible so that such factions cancel each other out. Campaign finance laws are really incumbent protection acts as such laws always help the incumbent. Free speech is not always pretty or accurate, but are essential for a free society to flourish.
Problem Solving Executive - Marketing, Sales, Economic & Environmental Trends
5 年Love your work. What do you think about the claim that Amazon allowed sellers to falsely advertise products they didn't have by not checking shipping addresses? https://www.roberttanguay.com/business/amazon-fake-shipping-fraud/
Ecommerce Marketplace Leadership | Retail Media | Amazon 1P/3P/Ads | ex-WPP | ex-LEGO | Experience with 250+ Brands
5 年So with this logic and related back to business, would someone lying about their client list and revenue list in a public interview constitute a violation?
Wild Card - draw me for a winning hand | Creative Problem Solver in Many Roles | Manual Software QA | Project Management | Business Analysis | Auditing | Accounting |
5 年Good idea. One issue that could arise:? What if a judge rules that political ads are not commercial speech and thus not subject to the act?? ? ? Time to find some precedents.?