Tag Archive for 'advertisement'

In Any Media War Between Israel and Palestine, Support the Side That Is Unambiguous

Advertisements are often quite fun in politics; how else can you get a person to say on public television that they are not a witch?

Sadly, some advertisements are more serious than others. New York City subways, for example, have begun placing advertisements created by the American Freedom Defense Initiative (AFDI) calling for the defeat of Jihad “savages”.  The ads began appearing in NYC subways at the end of last month, September 2012. Although the Metropolitan Transport Authority (MTA), the governing body of NYC’s subways, had initially refused to put up the ads due to a standing rule not to put up offensive messages, US District Judge Paul Engelmayer overruled the MTA, citing the AFDI’s right to free speech.

Muslim rights groups view the ads as an attack on their faith and their community. The AFDI, however, states that the anti-Jihad messages are only a response to “pro-Palestinian” advertisements calling for the end of American military aid to Israel, ads created by the Palestine Authority Group. The pro-Palestinian advertisements, unlike the anti-Jihad ads, faced no resistance from the MTA. Nevertheless, the MTA has moved forward in putting up the anti-Jihad ads in accordance with Judge Engelmayer’s ruling, but with disclaimers that the ads do not represent the MTA’s views on the issue.

The AFDI has a valid constitutional claim on the matter and Judge Engelmayer made the correct decision in this case. It is a long standing principle of American law that people have a right to speak their minds so long as the speech does not cause violence. If the KKK can hold an anti-Semitic parade down a Jewish neighborhood and the Westboro Baptist Church can hold an anti-gay protest across from funerals of homosexuals, then the AFDI should be able to place anti-Jihad ads in the NYC subway. The AFDI and the conservatives who support them are also right in emphasizing that we, Americans, cannot sacrifice our own values just because a group of people have anger management issues.

I realize that comparing the AFDI to the KKK and the Westboro Baptist Church isn’t a flattering comparison. However, many liberal watch groups would lump the AFDI with the KKK and the Westboro Baptist Church together as hate groups. Based on the AFDI’s anti-Jihad advertisement alone, the “hate group” label might be warranted. Indeed, I call their advertisements “anti-Jihad” rather than “pro-Israel” because there are significant differences between the AFDI’s advertisements and the Palestinian Authority Group’s advertising which calls for such a distinction.

If we compare the pro-Palestinian ad to the advertisement created by the AFDI, there are some notable differences and similarities. Calling Palestine the side of peace and justice is just as self-serving as calling Israel the side of civilization, but the Palestine message only calls for the end of American military aid to Israel. Given America’s debt crisis and Israel’s proven ability to defend itself, this policy suggestion is worthy of debate. I question the objectivity of any person who equates a simple foreign policy suggestion with anti-Semitism.

The AFDI claims their advertisement only targets “jihad”, radical Muslims who would kill an American Ambassador over an online video. The problem is that the advertisements run by the AFDI are not clear as to what course of action the AFDI wants other than to “defeat” Jihad. How the AFDI wants to defeat the Jihad threat is itself a mystery; Muslims can only hope that the AFDI’s plan doesn’t involve criminal persecution. Indeed, the FDI has already been caught trying to entrap Muslims by bribing said Muslims into making incriminating statements. The FBI isn’t gaining too much from its campaign, but the police harassment is certainly annoying to innocent citizens who have done nothing wrong. Although the AFDI itself doesn’t command the FBI, public fear does push the government to make certain decisions. Perhaps the AFDI should fine tone their messages before they spark more unnecessary calls for prosecution of Muslims.

Lawyer Suspended for “Secretary With Benefits” Job Ad

A memo to all employers out there: it’s probably a good idea to try and get your jollies outside of the office, on your personal time. Also, it’s generally illegal to solicit sexual favors in exchange for money. I believe the legal term for this is “prostitution.” Finally, it’s illegal to sexually harass your employees, and this includes making employment contingent on the performance of sexual favors.

And you know who, in particular, should be aware of these facts? Lawyers.

So imagine my surprise and confusion when I read this (with more detail on the Legal Profession Blog). Yes, a lawyer posted a job ad to Craigslist, in the “adult gigs” section, looking for a secretary to work in his law office, and perform traditional secretarial duties, while also performing sexual favors for the lawyer and another lawyer who shared his office.

This has to be one of the most bizarre sexual harassment claims I’ve ever read about (though it’s not even close to the weirdest story about Craigslist I’ve ever read, interestingly enough). Unfortunately, sexual harassment is still fairly common in the workplace. According to LegalMatch.com case data, thousands of people, in a wide range of industries, have sought legal counsel to help in their case against employers who have allegedly harassed them.

And over the last several years, the percentage of sexual harassment claims filed by men has increased, suggesting increased awareness that anybody can be the victim of sexual harassment in the workplace.

However, I noticed an interesting statistic recently: while the number of sexual harassment claims filed in the U.S. seemed to hold steady from the late 1990s to 2008, they dropped fairly sharply (down from about 13,000 claims to 11,000) in 2009 and 2010.

I’ve wondered why this is, because I seriously doubt that thousands of people all of the sudden had a change of heart and decided overnight to stop engaging in inappropriate behavior at work. And cases like the one I mentioned above show that some employers are still incredibly brazen in the way they engage in this despicable conduct.

So, what’s the explanation for the sudden drop in reported sexual harassment cases? Unfortunately, I think the state of the economy and the job market is partly to blame.

Most employees are probably pretty anxious about their ability to keep their jobs, especially those who occupy lower places in the business hierarchy.

So, it shouldn’t come as much of a surprise that some employees are probably afraid to report sexual harassment for fear of losing their jobs. Although it’s unlawful for employers to retaliate against employees for filing, in good faith, a claim for sexual harassment (even if the claim ultimately turns out to be without merit), that doesn’t mean that these things don’t happen.

Also, if an employee has filed sexual harassment cases in the past, even if they’re legitimate, future employers might be reluctant to hire that person, out of fear that they might file sexual harassment claims in the future. Again, this is illegal, but it’s usually pretty easy for an employer to come up with a plausible legal reason to not hire an employee, especially when the job market is as competitive as it is, and there are many qualified applicants for a given position.

I’m honestly not sure how we can deal with this problem. I should note that, although the number of sexual harassment claims filed each year is probably much smaller than the actual number of incidents of sexual harassment, the numbers are still tiny compared to the total number of working people in the United States.

This strongly suggests that the vast majority of employers have strong anti-harassment policies, and implement them effectively.

Hopefully, the rest of the employers in the country (especially our former-lawyer friend) get the memo that sexual harassment in the workplace is completely unacceptable.

Breaking News: Nutella is Not Health Food

In case you’re one of the unfortunate souls who has never tasted or (gasp!) heard of Nutella, I’m going to give you a minute to go to the nearest grocery store, buy some, and taste it. Go ahead. I’ll be here when you get back.

***

Delicious, isn’t it? Now, I understand that some people don’t like Nutella. They suffer from an unfortunate condition that psychiatrists refer to as “being wrong.” I can only imagine that it was one of those wrong people who brought this lawsuit (also reported here – requires registration, and here).

I’ll get serious now. A lawsuit, filed in a federal court in San Diego, alleges that the maker of Nutella engaged in false advertising, because it allegedly suggested that its product is a nutritious, balanced breakfast for children. Now, as delicious as Nutella is, I don’t think anybody would mistake it for a weight loss product. It is approximately 70% saturated fat and sugar, by weight. It’s definitely something to be enjoyed in moderation.

Looking at the label on a Nutella container, I don’t see anything implying that the stuff is diet food. Nonetheless, the lawsuit alleges that the named plaintiff in this class action bought the product after seeing a commercial that depicted mothers serving it to their children for breakfast, and declaring it to be healthy and nutritious.

She claims to have been “shocked” (SHOCKED!) when she found out that Nutella is not particularly healthy. I guess seeing the creamy chocolate goodness when she opened the jar didn’t clue her in.

This blog recently discussed a story concerning Taco Bell, and a lawsuit claiming that they shouldn’t call their taco filling “beef” because it’s allegedly less than 50% beef by weight. Now, if that turns out to be true, a case can be made that calling the product “beef” or “meat” without any qualifiers might be slightly misleading.

But simply showing people eating your product (the intended use of the product), as the offending Nutella commercials do, doesn’t seem like it could be in any way construed as a nutritional claim. If they had made commercials saying Nutella will help you lose weight, cure baldness, treat cancer, or that it can be molded into a working artificial heart, there might be a case for false advertising.

So, this individual case looks like it’s probably not going to go anywhere.

One silly case shouldn’t give the impression that false advertising isn’t a real thing that can cause real harm, however. As with any form of fraud, false advertising can cost its victims huge amounts of money, and can sometimes endanger their health, especially when a worthless or dangerous product is advertised as a medication or dietary supplement. Any statement in advertisement which is false, deceptive, or misleading can be grounds for a false advertising claim. It doesn’t matter if the victim was actually harmed, nor does it matter if the falsehood was deliberate.

This is a very strict standard – even a false claim that was included in an advertisement unintentionally, and causes nobody any harm, is illegal. And, generally, I think rules like this exist for a very good reason. If some advertisers were left to their own devices, it’s certain that they would mislead consumers. And if falsehoods that don’t directly harm the consumer, or which are accidental, aren’t illegal, some unscrupulous advertisers would be constantly pushing the envelope.

An absolute blanket prohibition for any and all false statements of fact in advertisements (leaving room for subjective statements of opinion, and “sales puffing”), encourages advertisers to scrupulously vet every factual claim made in an advertisement, since even accidental falsehoods are actionable.

This should, in theory, greatly reduce the number of instances of false advertising in the first place, making valid lawsuits for false advertising fairly rare.

On another note, the plaintiff in this case apparently declined to take advantage of another hard-won consumer protection: nutrition and ingredient labels on food. Look at every single packaged food product sold in stores. Notice the ingredient and nutrition information printed somewhere on the label? Do you think the makers of fried pork rinds put accurate nutritional information on their packages out of the kindness of their hearts? I didn’t think so. The FDA mandates that certain nutritional information be placed on the labels of packaged food. Nutella is presumably no exception. While compliance with labeling laws is no excuse for false advertising (if it did actually occur in this case), it does case some suspicion on the mother’s claim that she was “shocked” to learn that Nutella wasn’t healthy.

On the other hand, if Nutella did produce an advertisement suggesting that it had health benefits, or even indirectly suggesting that it wasn’t mostly sugar and fat, this plaintiff might have a case. And while I agree that litigation is probably the best way to redress serious violations of one’s legal rights, it should not be the first option you think of when you have a problem.

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A Victory For Free Speech and Hilariously Bad Lawyer Advertisements

We’ve all seen some pretty terrible advertisements for lawyers and law firms, some of them amusingly so. Of course, it’s easy for members of the public to have a laugh at the expense of some solo practitioner or small firm who just couldn’t afford to hire an advertising agency. However, many lawyers are divided over the merits of some of the tackiest examples of this phenomenon. Some lawyers see them as an embarrassment to the profession.

The 2nd Circuit Court of Appeals recently found some of New York’s rules concerning attorney advertising (which are tightly regulated in most states) to be unconstitutional as a violation of the First Amendment right to free speech. Here is the full opinion (.pdf).

Now, courts routinely allow for more leeway with respect to the regulation of commercial speech than other types of speech, and even more when it comes to regulating advertisements by professionals such as lawyers. So, these rules must have been pretty egregious if they were found unconstitutional.

Indeed, the rules did ban just anything that might make an advertisement remotely interesting to look at, thereby getting the viewer’s attention (you know, the whole point of advertising). Essentially, the ads would be limited to the lawyer saying something like “My name is John Q. Lawyer. This is my law firm. It is located here. I practice such and such areas of law. The end.”

The law banned most dramatizations, portrayals of fictional law firms, and depictions of judges in the advertisements. Lawyers were banned from “exhibiting characteristics clearly irrelevant to legal competence.”

Under such a rule, it’s arguable that attorneys wouldn’t even be able to put photographs of themselves on their websites or in their commercials, since a photograph of a lawyer doesn’t tell the consumer anything about his or her legal competence.

Furthermore, the advertisements prohibited most forms of client testimonials. Now, I’ll admit that this is a tricky area. We’ve all seen those commercials where a person in a foam neck brace says something like “John Q. Lawyer got me five hundred thousand dollars!”

These testimonials have to be handled very, very carefully. The lawyer has to be extremely careful not to imply that anything other than the merits of the client’s case got a particular result. After all, in the legal system, that’s all that’s supposed to matter (of course, we all know that, for better or worse, an extremely skilled lawyer can increase a person’s chances of winning a meritless case, but it’s fun to pretend).

Another interesting rule that was involved in this case was intended to prevent virtual “ambulance chasing.” Ambulance chasing, as you probably know, is a pejorative term used to describe lawyers who solicit directly to prospective clients immediately after they’re injured, or arrested, or whatever. Direct solicitation to individual clients, especially those who are injured or bereaved, is extremely distasteful, and can give the legal profession at large a bad name. For that reason, direct solicitation to individual clients is not allowed in most states.

But the New York rules attempted to address a relatively new problem: targeted Internet and television advertisements that refer to a specific accident, and attempt to solicit people who were injured in it as clients. For example, suppose a small plane crashes into a densely populated neighborhood, causing several injuries. A savvy lawyer sees the news coverage, and calls up an ad agency, and tells them that he wants an advertisement addressing that specific incident. He could have the TV commercials run during the local nightly news, which is likely to be talking about the accident. He could also buy advertising space on websites, with purchased keywords making it likely to show up next to news stories talking about the accident, and he does all of this with the intent that at least some of the accident victims or their family members will see the advertisements, and call him up.

Is this solicitation? The state of New York thought so, and prohibited such advertisements for a 30-day period after the accident occurred. The 2nd Circuit upheld this prohibition.

The court also upheld a provision that prohibited lawyers from making false or misleading statements in their advertisements, which was not very controversial to begin with.

All in all, this seems like a pretty good decision: it protects the First Amendment rights of lawyers (yes, even lawyers have a right to free speech) with respect to advertising, but leaves states enough leeway to regulate lawyer advertising to curb some of the worst practices (direct solicitation, false advertising, etc.).

Of course, because of this, states will likely not be able to regulate the tone or style of lawyer advertisements. From a free speech perspective, this is certainly a good thing. However, it still seems that lawyers who choose to advertise should give some thought to the dignity and prestige of the profession that they worked so hard to get into.