Wednesday, August 22, 2007
FindLaw's Julie Hilden critiques the Second Circuit's decision in Time Warner Cable v. DirecTV (2007 U.S. App. LEXIS 18846)(2007)(2007 WL 2263932 (C.A.2 (N.Y.)).
Says Hilden, "The Second Circuit panel's decision required it to interpret the federal Lanham Act's prohibition on false advertising, which encompasses a "false or misleading description of fact, or false or misleading representation of fact….in commercial advertising" pertaining to "the nature, quality [or] characteristics of….another's goods, services or commercial activities." However, because the Constitution trumps federal statutes, the Lanham Act's prohibition must be interpreted in a way that is consistent with the First Amendment. That's true....Nevertheless, the Second Circuit reached two conclusions that are jarringly inconsistent with basic First Amendment principles: First, it held that, rather than making its own independent review of the advertisements at issue, it could properly defer to the district court's interpretations of the advertisements' meaning unless that determination was "clearly erroneous." This makes little sense, however, for a court performing First Amendment review should never check its own independent judgment at the door. To the contrary, the court should conduct its own searching review, as if the meaning of the speech were a question of first impression. Second, while the Second Circuit panel deemed the Simpson commercial "literally false," on the ground that it is "flatly untrue" that DIRECTV provides the "best picture quality" compared to cable, it deemed the Shatner commercial not literally false but simply misleading. Yet it still upheld the district court's decision to enjoin the commercial at a preliminary stage, even before the case had been litigated. This decision, too, is highly problematic from a First Amendment standpoint...."