COMMERCIAL SPEECH & THE FTC
This is the primary federal governing body that regulates advertising practices in the United States, utilizing Section 5 of the FTC Act.
What is the Federal Trade Commission (FTC)?
The fundamental constitutional purpose for which Congress is granted the power to secure exclusive rights to authors for limited times.
What is 'promote the Progress of Science and useful Arts'?
The ambiguous mandate in the Communications Act of 1934 that provides the legal basis for the FCC's broad regulatory authority over broadcast media.
What is the 'public interest, necessity, and convenience'?
This is the primary constitutional principle that limits government censorship but largely exempts private social media platforms from similar restrictions.
What is the First Amendment (or the state action doctrine)?
This is the core category of speech that receives the highest level of First Amendment protection
What is Political Speech?
This category of claims refers to general, favorable exaggerations, like calling a product the “Best Coffee in the World,” which are generally not treated as claims needing substantiation.
What is Puffery?
This is the minimum requirement for a work to be original, requiring only a “tiny spark of creativity” or a "modicum" of creativity.
What is the minimal standard?
The fundamental legal reason, upheld by the Supreme Court, that justifies the heavy government regulation of broadcast media.
What is the scarcity of frequencies in the airwaves?
This is one of the two major limitations of traditional content moderation methods based on human review when faced with the enormous volume of user-generated content.
What is being slow/costly or not scalable?
This is what the famous 26 words of Section 230 state a provider of an interactive computer service shall not be treated as
What is the publisher or speaker?
Under the four-part Central Hudson Test, this is the First Amendment protection standard afforded to commercial speech, which is generally less than political speech.
What is a lesser degree of protection?
This doctrine is considered a built-in safeguard to balance copyright and free speech by protecting a work’s expression but not the underlying concepts or data.
What is the Idea-Expression Dichotomy?
This content standard is unprotected by the First Amendment and cannot be broadcast at any time, requiring the material to lack serious literary, artistic, political, or scientific value.
What is Obscene material?
This process results from AI’s difficulty interpreting context and nuance, leading to the wrongful removal of important content like posts raising awareness about breast cancer symptoms.
What is systemic over-enforcement?
This is a major concern raised by the use of microtargeting in political ads, resulting in highly personalized messages that spread with little public accountability.
What is lack of public scrutiny?
This is the high-level compliance requirement that all claims, including express and implied ones, must be backed by recent, reliable evidence established before the ad airs.
What is Substantiation?
This is the most significant exception to the initial rule of author ownership, where the employer is legally considered the author and owner because the work was created by an employee within the scope of their regular duties.
What is a ‘work made for hire’?
The doctrine, abolished in 1987, that required broadcasters to present balanced programming on controversial issues and offer time to opposing views.
What is the Fairness Doctrine?
This is the process, required by the European Union's AI Act, that flags content so users know it was machine-generated.
What is labeling (or digital watermarking)?
This is the condition under which a platform loses its Section 230 immunity, meaning it becomes responsible for the illegality of the content itself
What is materially contributing to the unlawful content?
This 1976 Supreme Court case explicitly extended First Amendment protection to commercial speech, recognizing the reciprocal right of consumers to receive truthful information, such as prescription drug prices.
What is Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.?
In fair use analysis, courts favor uses that have this quality, meaning the copyrighted material is reused for a new purpose or adds new meaning or expression.
What is Transformative?
The specific time period, defined by the FCC, when indecent programming is restricted to protect children from being in the audience.
What are 6 a.m. to 10 p.m.?
This is the essential role human moderators play in the process, which AI cannot fully replace, providing feedback used to train and refine AI systems.
What is providing feedback (or handling complex cases or interpreting context)?
In the Moody v. NetChoice case, the Supreme Court confirmed that the selection, ranking, and organizing of posts on a News Feed constitute this First Amendment-protected activity
What is protected expressive activity (or editorial judgment)?