Complaint Counsel's Post Trial Brief - Federal Trade Commission

underlying activity." Central Hudson Gas & Elec. Corp. v. Pub. Servo Comm 'n, 447 U.S. 557, 564
(1980) (citing Bates V. State Bar of Arizona, 433 U.S. 350, 381 (1977)).
For commercial speech to receive the protections of
the First Amendment, the commercial
,
speech "at least must concern lawful activity and not be misleading." Id. at 566. Moreover, the
goverent may prohibit false or misleading commercial speech entirely. See In re R. M. J., 455
U.S. 191,203 (1982) ("Misleading speech may be prohibited entirely"). Thus, deceptive
commercial speech, as Complaint Counsel alleges is at issue in ths case, is not protected by the
First Amendment. See Zauderer, 471 U.S. at 638 ("The States and the Federal Goverent are
free to prevent the dissemation of commercial speech that is false, deceptive, or misleading");
National Urological Group, 2008 U.S. Dist. LEXIS 44145, at *29-30 (citing
Bristol-Myers Co. v.
FTC, 738 F.2d 554,562 (2d Cir. 1984) ("(D)eceptive adversing enjoys no constitutional
protection")).
Although Respondents have assered that their sale ofthe DCO Products and any attendant
adverising clais are a par of their religious mistr, this purorted lin does not change the
commercial natue of the speech at issue. In Bolger v. Youngs Drug Products Corporation, the
Supreme Cour concluded that advertisements were commercial speech, "notwithstanding the fact
that they contain discussions of
important public issues." 463 U.S. 60, 67-68 (1983). Indeed, to
fid otherwise would allow adverisers to "immunze false or misleading product iriformation from
goverent regulation simply by including references to public issues." Id. at 68. Respondents
"ha(ve) the full panoply of
protections available to (their) direct comments on public (or religious)
issues, so there is no reason for providing them simlar constitutional protections when such
statements are made in the context of commercial transactions." Id.
Thus, Respondents can comment on public and religious issues freely. Respondents
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