Complaint Counsel's Post Trial Brief - Federal Trade Commission

canot, however, make deceptive statements in connection with the sale of the Challenged
Products and protect that deception through flaw,ed invocations of
C. The FTC's Action Does Not Constitute a Prior Restraint
the First Amendment.
Respondents have assered that this admistrative proceeding imposes a prior restraint in
violation of their First Amendment rights. Respondents misapply the concept of
"prior restraint."
"The ter 'prior restraint' is used 'to describe adminstrative and judicial orders forbidding certain
communcations when issued in advance of the time that such communcations are to occur,'" and
include regulatory schemes where the pertting authority enjoys ''ubridled discretion" over
whether to pert futue speech. Alexander v. United States, 509 U.S. 544, 550 (1993) (citations
omitted); see also FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225-26 (1990); Granite State
Outdoor Adver. Inc. v. City of
Clearwater, Fl., 351 F.3d 1112, 1117-18 (11th Cir. 2003).
The FTC brought ths case using its law enforcement authority to challenge adverising that
has already been dissemated by Respondents. There has been no prior restrction on
Respondents' adverisements. Moreover, Respondents are in no way compelled to discontinue
claims in aleady-disseminated adverisements that they believe to be trthful until the FTC has
proven that the clais are deceptive and a final order is issued prohibiting the claims.
The instant action also does not infrge on Respondents' right to free exercise of
religion.
Although they may not make deceptive clais to sell products, Respondents are otherise free to
believe whatever they want and to practice their faith as they see fit. Church of Scientology v.
Richardson, 437 F.2d 214,217 (9th Cir. 1971) (stating that ''the exercise of
religious freedom does
not include the freedom to violate the Federal Food, Drug, and Cosmetic Act") (emphasis in
origial). The fact that Respondents purort to have a religious motivation in makng the claims at
issue is irrelevant. Subjective intent is not an issue in a claim brought under Section 5 of the FTC
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