Complaint Counsel's Post Trial Brief - Federal Trade Commission

adverisements and promotional materials, which are broadly disseminated on the Internet to draw
customers, contain little or no political or religious commentar. See CX 12-15. Thus,
Respondents have engaged in commercial speech in advertising and selling the DCO Products, and
their commercial speech is deceptive.
B. The First Amendment Does Not Protect Deceptive Commercial Speech
The speech at issue in this case is commercial speech, not political or religious speech as
Respondents argue. The deterination of whether speech is commercial speech "rests heavily on
'the common sense distinction between speech proposing a commercial transaction. . . . and other
vareties of speech.'" Zauderer v. Offce of Disciplinary Council, 471 U.S. 626, 637-38 (1985).
As a result, the deterant factor is whether the speech at issue "propose( s) a commercial
transaction." Bd. of Trustees of State Univ. of
New Yorkv. Fox, 492 U.S. 469, 473-74 (1989). As
noted above, the Respondents make the claims at issue in the context of a Web site and other
promotional materal used to promote and sell their products. The speech at issue proposes a
commercial transaction - the purchase of
Respondents' products - and is commercial speech.
The Supreme Cour has long held that "the Constitution accords less protection to
commercial speech than to other constitutionally safeguarded forms of expression." Bolger v.
Youngs Drug Prods. Corp., 463 U.S. 60, 64 (1983). Commercial speech receives less protection
than other forms of expression under the First Amendment because "commercial speech may be
more durable than other kids. Since adversing is the sine qua non of commercial profits, there
is little likelihood of its being chilled by proper regulation and foregone entirely." Virginia State
Bd. of
Pharmacy v. Virginia Citzens Consumer Council, 425 U.S. 748, 772 (1976). In addition,
"commercial speakers have extensive knowledge of
both the market and their products. Thus,
they are well suited to evaluate the accuracy of their messages and the lawfulness of the
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