It is a truism that words have multiple meanings. String them together in a sentence and greater opportunity exists for construing them to mean something other than intended by the speaker. Add to that meanings not overtly expressed but interpretable as implied and you can transform an intended meaning into an unintended one with relative ease. It is this malleability in words that caused an expansion in defamation law in the first half of the Twentieth Century. The Supreme Court recognized in New York Times v. Sullivan that the law of libel had to be constrained by the First Amendment, lest libel law dampen “wide open” and “robust” debate in the idea and information market. Undoubtedly when the power of government is allowed to expand such that it hinders the free flow of ideas and information or causes a pervasive chilling effect, the time has come for the First Amendment to strike down the acts that censor.
We may equate modern deceptive advertising enforcement to the expansion in libel law. As with libel law, so too with FTC construction of deceptive advertising, the agency routinely construes words to have meanings that the speakers either do not intend to convey or do not understand to be implied. The FTC has been granted extraordinary interpretive power, such that federal courts defer to the FTC’s judgment as to the meaning of words even in the absence of survey or other empirical evidence proving consumers to share FTC’s view of the meaning of the words in question. FTC staff commonly demand proof for claims said to be implied by the words used in advertising, again without any proof whatsoever that either the speaker intended the implication or that consumers understood the implication to arise from the language used.
There has been a regulatory creep by FTC that has expanded the reach of the agency into the free speech market. At first, FTC interpreted deception to embrace only that speech which was demonstrably false (that is, speech having but one secure meaning which is objectively contrary to material fact concerning a product). Then, FTC expanded its interpretation of deception to embrace alternative meaning (that is, speech which begets two or more secure meanings only one of which is objectively true). Thereafter FTC expanded its interpretation of deception to embrace implied meaning (that is, speech which begets secure meanings which are objectively true but may be interpreted to imply one or more meanings that are objectively false).
The burden on speech is now equal to or greater than the burden imposed by an expansive concept of libel. Health benefit advertisers must not only prove what they literally say to be true but must engage in an impossible exercise of endeavoring to discern all possible implied meanings of the words used and prove each implication demonstrably true. That response to aggressive speech regulation leads ineluctably to a very high degree of self-censorship, as advertisers discard not only words but also entire categories of speech from their usable lexicon, dumbing down the advertising marketplace and disinviting the kind of robust and wide open debate that the Supreme Court has expected will result when the First Amendment disarms government.
To help restore the primacy of the First Amendment’s protection for a free idea and information market, it would help if the courts would impose on the FTC a rule of innocent construction. In the case of libel law, the rule of innocent construction is observed in most jurisdictions. Under it, if words are capable of being understood to convey an objectively true meaning, then the speaker cannot be held guilty of libel (even if one or more possible interpretations of the words leads to a conclusion that the speech is libelous). Adherence to the rule of innocent construction provides a powerful anecdote to over exuberant regulators, forcing them to prove not only that a statement is false but also that alternative meanings do not exist that render the statement demonstrably true. That is as it should be because the freedom of speech protected by the First Amendment is not intended to ensure an antiseptic environment free of error but to ensure that state intervention is limited to those instances in which injury is not capable of being redressed through the addition of more speech.
