Mark Bartholomew, University at Buffalo – Free Speech and Advertising

Advertisements are more pervasive than ever.

Mark Bartholomew, professor of law at the University at Buffalo School of Law, discusses advertisements and the First Amendment.

Mark Bartholomew, professor of law at the University at Buffalo School of Law, writes and teaches in the areas of intellectual property and law and technology, with an emphasis on copyright, trademarks, advertising regulation, and online privacy. His articles on these subjects have been published in the Vanderbilt Law Review, the George Washington Law Review, the William & Mary Law Review, the Brigham Young Law Review, the Connecticut Law Review, and the Berkeley Technology Law Journal among others.

Bartholomew is a two-time winner of the School of Law’s only teaching award, the Faculty Award.  In 2009, he received the University at Buffalo’s Teaching Innovation Award.  In 2016, he received the SUNY Chancellor’s Award for Excellence in Teaching.  Bartholomew received his B.A. from Cornell University and his J.D. from Yale Law School.  Before joining UB, he practiced law, both as a litigator for a San Francisco law firm and as a deputy county counsel in Sonoma County, California. He grew up in South Bend, Indiana.

His book Adcreep: The Case Against Modern Marketing was published this spring by Stanford University Press.

Free Speech and Advertising

By some estimates, the average American is exposed to over 3,000 ads in a single day. 

More and more of these ads are appearing in public spaces like schools, parklands, and mass transit stations.  This phenomenon has one, potentially unforeseen consequence.  As advertising enters public space, First Amendment law has changed to make it harder for civic authorities to control what kind of advertising can go into that space. 

Commercial advertising used to receive no First Amendment protection.  Even when the Supreme Court changed course in 1976 and decided that commercial speech did warrant some First Amendment shielding, the Court still gave government officials wide latitude to police the kinds of advertising they would allow.

In recent years, however, the tests for evaluating the constitutionality of advertising restrictions have gotten tougher.  As a result, public officials now need to worry about what happens when they let one advertiser into a previously ad-free space.  School boards and transportation authorities can face expensive free speech lawsuits for spurning a particular business. 

Imagine a hypothetical case.  A school district bars a merchant from participating in a program that lets businesses pay to have their name and logo printed on student report cards.  (It’s true—such programs do exist.)  Maybe the district feels that the merchant’s particular product is unhealthy or incompatible with its educational mission. 

A First Amendment challenge would require the district to come up with a compelling reason for excluding the merchant.  This burden gets more difficult to satisfy as schools become increasingly commercialized and acquire track records of less-than-discriminating corporate sponsorship.  Under current law, once the advertising genie comes out of the bottle, the First Amendment makes it hard to put him back inside.