Kirk Debate - But Not All "Free Speech" Is Created Equal

WASHINGTON - Sept. 21, 2025 - PRLog -- The murder of Charlie Kirk, and the subsequent cancellation of Jimmy Kimmel has significantly raised the temperature concerning the ongoing debate over free speech.

While the debate has largely concerned what speech is protected by the Constitution, much of the discussion largely ignores the differences in the amount or degree of protection afforded by the Constitution over speech which is protected, says the law professor whom Reader's Digest labeled "The Man Behind The Ban on Cigarette Commercials."

More specially, the First Amendment provides less protection to commercial advertising than it does to other types of speech, explains public interest law professor John Banzhaf.

More specifically, the FCC's decision was upheld by the courts because "the cigarette ruling does not ban any speech," and "the speech which might conceivably be 'chilled' by this ruling barely qualifies as constitutionally protected speech." Banzhaf v. FCC

Then, when Congress banned cigarette commercials, itf was also held to be constitutional.  The court cited "the rather limited extent to which product advertising is tangentially regarded as having some limited indicia of such protection.." Capital Broadcasting Company v. Mitchell (https://law.justia.com/cases/federal/district-courts/FSup...)

This distinction is very important to keep in mind, says Banzhaf, because Secretary Robert F. Kennedy, Jr. of HHS, has declared that "pharmaceutical ads hooked this country on prescription drugs" and promised "We will shut down that pipeline of deception . ."
FDA Launches Crackdown on Deceptive Drug Advertising (https://www.fda.gov/news-events/press-announcements/fda-l...)

But a more effective and probably speedier tactic; require TV stations to provide free time for independent public health organizations to present contrary information and health warnings

An alternative would be to use the approach Professor Banzhaf employed by helping to convince the FTC to adopt which is called now called "Corrective Advertising."

Under it, the FTC simply orders companies found to have used ads which were deceptive to confess their deception in future ads, and to fully explain the deception.

Rather than simply stopping drug companies from continuing to run misleading ads, wouldn't it be more effective to use the corrective advertising remedy to order them to confess to the public how they lied, and to correct the lies.

That both helps undo the deception from the misleading ads which can continue among consumers for a long time, and provides a very powerful incentive for them to be scrupulously careful in all future ads, explains the activist law professor.

Banzhaf hopes that at least some of this new interest in the First Amendment and free speech, triggered by Kirk's murder and the responses to it, will focus on major health problems which Kennedy and others are so concerned about; pharmaceuticals and medical products.

http://banzhaf.net/  jbanzhaf3ATgmail.com  @profbanzhaf