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Commercial Speech & Advertising

Davis Wright Tremaine has been involved in cases addressing the constitutionality of restrictions on advertising and commercial speech for approximately 40 years. We have been active in case after case across the country promoting First Amendment protections for commercial speech.

One of our earliest First Amendment cases involving the defense of commercial speech was in 1975, and involved a Washington statute that made it unlawful to use any dairy terms in advertising margarine or other nondairy products. We sued and persuaded the United States District Court in Seattle to toss out this restrictive law, with the court noting that, while the state could constitutionally restrict false or misleading advertising, the "proscriptions [of the statute] are so broad that even true, honest and nondeceiving comparative references to the dairy term 'butter' in informational advertisements … are made criminal acts."

In the intervening years, we have been active in major advertising and commercial speech challenges. For example, we have represented litigants and amici in more than a dozen major United States Supreme Court commercial speech cases, ranging from Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico (1986) to Sorrell v. IMS Health Inc. (2011).

Our lawyers literally wrote the book on this important subject. Davis Wright Tremaine partner P. Cameron DeVore (1932-2008) pioneered discussions about this topic in articles and lectures beginning in the early 1970s, and eventually became the co-author of the major national treatise, "Advertising and Commercial Speech: A First Amendment Guide," published in 1998 by the Practising Law Institute. The second edition of this treatise is co-authored by DWT partner Bruce E. H. Johnson.

In 2005, DWT obtained a favorable appellate ruling in Fidelity Mortgage Co. v. Seattle Times Co., holding that newspaper coverage of mortgage rates was not "commercial speech" subject to state consumer protection laws. Two years later, in Browne v. Avvo, Inc., DWT defended a website that rated local lawyers and, as a result, was sued in a purported class action by two disgruntled attorneys. The federal court dismissed their lawsuit, holding that such a website—even though it relied on advertising—was not engaged in “commercial speech” and its evaluations were absolutely protected by the First Amendment.

More recently, in March 2012, the federal court in Seattle followed the Fidelity Mortgage and Browne rulings by reaffirming that a lawyer ratings website, even if it was supported by advertising revenue, was not "commerce" that was subject to a claim arising under the state’s Consumer Protection Act. The court in Davis v. Avvo, Inc., granted our motion to strike under the state's anti-SLAPP law and awarded the defendant its reasonable attorneys’ fees incurred in its successful motions, plus the statutory $10,000 award provided by RCW 4.24.250(6)(a).

We have handled other major commercial speech matters across the nation. For example, the firm's attorneys participate in major FCC, FTC and other federal agency rulemakings on behalf of commercial speakers, and, when necessary, litigate to protect their interests. Davis Wright Tremaine attorneys regularly provide counsel to advertising trade associations on a range of regulatory issues relating to commercial speech. In 2008, DWT submitted major comments on behalf of 18 trade associations and media companies in an FCC rulemaking proceeding on product placement. We also participated in agency proceedings and engaged in a First Amendment challenge to the FTC and FCC "do-not-call" regulations on behalf of the telemarketing industry.

One recent area of constitutional controversy involves billboards. A DWT team represented outdoor advertising company Clear Channel Outdoor in mounting First Amendment challenges to municipal billboard regulations in New York and Tucson, Ariz. We have also regularly represented billboard companies in other commercial speech disputes in California, Oregon, and Washington.

DWT also represented in federal court in Washington, D.C. in a challenge by the Humane Society of the United States which sought to ban sales of subscriptions to magazines because of advertisements claimed to violate federal laws on animal fighting.

In another leading case on the scope of commercial speech and First Amendment rights, we represented "Rolling Stone Magazine" in a California right of publicity action. Indie musicians challenged their inclusion in an Indie rock editorial feature that was surrounded by a gatefold ad for Camel cigarettes also celebrating independent music. On appeal, Rolling Stone argued that the feature was fully protected by the First Amendment and did not inadvertently become commercial speech. Its anti-SLAPP motion was granted and the action was dismissed.

We work with our clients from inception to execution in developing advertising for use in all traditional, "new" and emerging media, including claims substantiation, IP licensing, talent and production agreements, sweepstakes and entertainment-based promotional programs and broadcast clearance services. When challenged, we represent our clients before states’ attorneys general, the Federal Trade Commission, local regulatory bodies and the National Advertising Division (NAD) of the Better Business Bureau. We regularly represent advertisers before the NAD as both challenger and advertiser and have recently won important victories for our clients in challenges in a variety of product categories ranging from weight loss to infant care to motor oil to test preparation review services. We also handle advertising-related lawsuits arising under the Lanham Act and various state advertising and consumer protection laws.

Finally, our lawyers across the country regularly defend our clients against commercial misappropriation and right of publicity claims that may arise in a variety of advertising and non-advertising contexts.

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