I am the defendant in a case where the plaintiff is trying to get a judge to issue a temporary restraining order against me expressing my opinions of the organization on a consumer advocacy website. This morning I participated in a telephonic hearing with the judge, plaintiff's attorney, and myself being unrepresented. During the hearing, plaintiff's attorney argued that this was not a case of free speech but rather a case of business speech, and therefore my comments on the consumer message board were in violation of the law.
I had never heard of business speech as juxtaposed by free speech. Is there such a thing? If so how does it differ?
Real Estate Attorney
Commercial speech has less protection under the First Amendment than non-commercial speech.
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If you and your organization are being sued because of things written on a consumer advocacy website, that sounds like a classic SLAPP situation, where a lawsuit is filed to shut someone up who's speaking on a matter of public interest. Attorney's fees are available for this type of defense, but an anti-SLAPP motion, which is sort of like summary judgment motion because it's extensive and can end a case, has to filed right away in a lawsuit, to basically short-circuit it and stop the attempt to stop such speech, so you may have missed your opportunity to do this.
You need to see a lawyer ASAP. Contact the EFF, http://www.eff.org/, they sometimes take on cases like this pro bono, or try Legal Aid.
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
Business speech ("Commercial speech") has some First Amendment protection. Usually, we are dealing with advertising or other business claims. The protection, however, is not a great as the protection given to non-commercial forms of speech or expression. The First Amendment will protect commercial speech that is not false or misleading and that does not advertise illegal or harmful activity.
Commercial speech can be restricted only to further a "substantial government interest" and only if the restriction actually furthers that interest. The Supreme Court In Central Hudson Gas & Electric Co. v. Public Service Commission, (1980) 447 U.S. 557, held that a statute banning promotional advertising by public utilities was unconstitutional. That case established a "general scheme for assessing government restrictions on commercial speech." Commercial speech will be protected by the First Amendment if (1) it concerns lawful activity and is not misleading; (2) the asserted government interest is not substantial; (3) the regulation does not directly advance the asserted governmental interest; and (4) the regulation is more extensive than is necessary to serve that interest.
Using this test, The U.S. Supreme Court struck down bans on drug advertising, Thompson v. Western States Medical Center, (2002) 535 U.S. 357 and tobacco advertising, Lorillard Tobacco Corp. v. Reilly, (2001), 533 U.S. 525.
I hope this helps and wish you the best with this issue.
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Since a great deal of information would need to be analyzed for a complete legal evaluation, this answer is offered for informational purposes only. It is not offered as, and does not constitute, legal advice.
I expect you may like a business speach litigation defended by the owner of this web site http://www.farmersinsurancegroupsucks.com/
The company sued him and lost so the pages are still up, take a look. The page http://www.farmersinsurancegroupsucks.com/ourstory.htm
has some info you may find helpful.