The Supreme Court has suggested a "degree of protection"approach to reconcile the first amendment protection of commercial speech with the need to effectively regulate false or misleading advertising. In so doing, however, the Court has failed to establish clearly the judicial standard of review appropriate in examining regulative measures. In the absence of adequate guidance, several circuit court decisions have adopted an unjustified standard of strict judicial scrutiny. The continued use of this standard by the circuit courts in reviewing FTC decisions will present increasing institutional problems for the courts and will seriously undermine the Commission's ability to protect consumers through the regulation of deceptive advertising. To avoid these consequences, the courts should employ a more deferential standard of review, intervening only in cases in which the FTC's regulation is not reasonably related to preventing deception of the public.
Robert D. Eckinger,
First Amendment Restrictions on the FTC's,
31 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol31/iss2/4