No. The restrictions on Joe Camel ads and similar tobacco promotions are contained in the Master Settlement Agreement, which applies to the tobacco companies. The government can enforce its contract with the tobacco companies in the MSA, but the government would violate the First Amendment if it punished a person merely for wearing a shirt with a tobacco emblem. Public school secondary students should be aware, however, that such a sweatshirt may very well violate a school dress code.

No, telemarketers cannot call consumers before 8 a.m. or after 9 p.m. Telemarketers who do call after these times have violated two federal laws that overlap somewhat — the Telephone Consumer Protection Act and the Telemarketing and Consumer Fraud and Abuse Prevention Act. Both laws empower either state officials or individuals to sue for abusive telemarketing practices. Complaints can also be filed with the Federal Communications Commission and the Federal Trade Commission.

Generally, yes. However, many states have passed laws regarding telephone harassment. In Tennessee, for example, telephone harassment is committed by one “who intentionally threatens by telephone … to take action known to be unlawful against any person, and by this action knowingly annoys or alarms the recipient” (T.C.A. § 39-17-308(a)(1)). The elements for telephone harassment must be proven beyond a reasonable doubt by the state. While the elements vary slightly from state to state, the prosecution generally must prove that the defendant placed the calls anonymously, repetitiously or at an inconvenient hour; the defendant had no legitimate purpose for contacting the victim; and the defendant’s action somehow alarmed or annoyed the victim.

Those concerned about gambling’s harmful effects on individuals and society say these dangers justify restrictions on enticements to gamble.

There could be a constitutional problem because the United States Supreme Court has written that “the text of the First Amendment makes clear that the Constitution presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct.”

In its 1986 decision in Posadas De Puerto Rico Associates v. Tourism Company of Puerto Rico, the Court did adopt the so-called “greater-includes-the-lesser argument.” The Court wrote that “the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling.” This decision was heavily criticized by legal commentators as failing to provide sufficient protection for freedom of speech.

A decade later, in a 1996 case concerning liquor ads, 44 Liquormart, Inc. v. Rhode Island, the Court rejected this argument. The Court reasoned that attempts to suppress speech are oftentimes worse than banning conduct. Because the free flow of information is vital to a constitutional democracy, the government often has less power to regulate speech, particularly truthful speech.

Billboard proponents emphasize the informational value of a time-honored mode of communication. They point out that billboards convey useful information to the public about legal products. Billboard opponents claim that the large fixtures cause visual blight and negatively impact traffic safety. They argue that without regulation, billboards would overrun highways. Proponents counter that there is no evidence to suggest that billboards cause harm to traffic safety. They argue any regulation of billboards should be reasonable and that, at the very least, the signs should be allowed in commercial and industrial zones.

No. The Supreme Court has held that producers face no restraints should they wish “to communicate any message to any audience.” They are under no compulsion to say anything, nor can they be forced “to endorse or finance any political or ideological views.”

When the government regulates news racks, it affects a fundamental delivery device by which publishers convey their informative products to the public. Many people purchase or pick up newspapers and commercial handbills from news racks. Racks provide an easy way for many people to obtain these publications. The U.S. Supreme Court has written that news racks “continue to play a significant role in the dissemination of protected speech.”

No, not all. Attorney advertising is a form of commercial speech that is not entitled to the same level of First Amendment protection as other types of noncommercial speech, such as political speech.

Under the U.S. Supreme Court’s commercial-speech doctrine, the threshold question is whether the attorney ad concerns lawful activity and is not misleading. Thus, the government freely may regulate false and misleading attorney ads. If the attorney ad is not false or misleading (or does not concern illegal material), then the government can regulate the ad only if: (1) the government has a substantial interest in regulating the attorney ad; (2) the government’s regulation directly and materially advances its substantial interest; and (3) the regulation is narrowly tailored.

For example, the U.S. Supreme Court in its 1995 decision Florida Bar v. Went For It, Inc., upheld a Florida Bar restriction that prohibited attorney solicitation letters from being sent to accident victims or their families within 30 days of the accident. The Court reasoned that the 30-day ban on attorney solicitation letters was a narrowly tailored way to protect the privacy of accident victims and the reputation of lawyers.

The FDA doesn’t have absolute control because, as a federal agency, it is bound by the dictates of the Constitution and the First Amendment. Generally, the content of labels is considered to be at least a form of commercial speech that merits a degree of First Amendment protection.

Probably.

In 1991, Congress enacted the Telephone Consumer Protection Act. Part of this act made it unlawful to send unsolicited advertisements to a fax machine without the recipient’s prior permission. However, in 2005 the Junk Fax Prevention Act was signed into law. That act amended the TCPA to allow faxes to be sent to recipients, without prior consent, if there is an established business relationship.

An established business relationship is a prior or existing relationship formed by a voluntary two-way communication between the sender and the recipient. However, the JFPA also allows senders to fax those whose numbers they received from “a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution.” There is no time limit on this exception. So, if a fax number appeared on such a list 10 years ago and a sender obtains that list, they can send faxes to that number without being penalized. If a fax owner never put his or her fax number on any type of list that could be available to the public and has no business relationship with a sender, he or she can sue the sender of the unsolicited fax.

However, some states may have laws regulating faxes sent within their states that are more stringent than the JFPA.