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Wednesday, January 31, 2018

Burger King, Net Neutrality, and Commercial Speech

Last week, Burger King (BK) released a pro-net neutrality video that quickly went viral.  In short, BK used a Whopper analogy to try to explain the debate surrounding the FCC’s recent repeal of the net neutrality rules.  This is interesting, first, because it adds a new and unexpected voice to the net neutrality discussion.  Tech companies, of course, are going to weigh in on the net neutrality debate, although the major players will apparently be less affected by the change than some might expect.  But the fast food industry’s interest in net neutrality is not as clear. 

That brings me to the second reason why BK’s video caught my attention.  When I first watched it I wondered, is this commercial speech?  BK’s video is a form of corporate image advertising, a topic I am writing about in a current work-in-progress.  Specifically, it’s what’s known as cause-related marketing, meaning for-profit entities affiliate themselves with a particular cause—here, net neutrality—to promote their image and products.  And it looks like BK’s strategy is working.  Yesterday, FCC Commissioner Mignon Clayburn, who opposed the net neutrality repeal, tweeted a photo of herself with a BK mug and said: “Had a craving for @BurgerKing during today's @FCC Open Meeting. #NetNeutrality”   

The U.S. Supreme Court was poised to decide the question whether corporate image advertising is commercial speech in Nike, Inc. v. Kasky, 539 U.S. 654 (2003).   In that case, the California Supreme Court had held, in a split decision, that Nike’s advertisements, press releases, and newspaper editorials addressing various “sweatshop” allegations were commercial speech.  Ultimately, however, the Supreme Court dismissed the writ as improvidently granted because there was no Article III standing, and then the case settled.  One the one hand, BK’s ad looks commercial in that it’s motivated by a desire to increase profits.  On the other hand, BK is commenting on an important matter of public policy, making this look like core speech.  In light of the Court’s more recent decisions on commercial speech (e.g., Sorrell v. IMS Health Inc.), I believe BK’s ad would be treated as noncommercial, but I would love to hear what others think.


Posted by Megan La Belle on January 31, 2018 at 03:03 PM | Permalink


Just clarification to my comment above :

When I write " hybrid creature " means , partly commercial partly public view or alike standing , didn't refer to legal definitions or at first place legal meaning . But , simply looks as bit of both , partly advertising BK , partly , expressing public opinion, in more coherent and intellectual sense of it .


Posted by: El roam | Jan 31, 2018 5:15:52 PM

This would not be treated as commercial. Bolger defined commercial as speech that does no more than proposes a commercial transaction, which this speech does. Just as the Nike "If You Let Me Play" ads were non-commercial, so no one could have complained if the stats used were untrue.

And the fact that BK is motivated by a desire to increase profits should not matter to the definition. Lots of speech (by individuals and organizations) is motivated by a desire to increase profits, but we don't have protection turn on that question.

Posted by: Howard Wasserman | Jan 31, 2018 4:52:58 PM

Thanks for that interesting post , but it seems , that BK , is simply retaliating for certain act or kind of wrongdoing had been made by Google , and certain edition or modification in Wikipedia concerning their flag brand "whopper " next movies or shots simply ) .

However , it seems that we have here a hybrid creature . Partly commercial , and partly made for having stance in a public debate . BK , is a global brand or firm , as such ,can't mix bias or political views in no way with its commercial activity . As such , it seems that they have interest , to enhance their public neutrality , through net neutrality standing or view . On the other hand , by watching next shots , it looks as if , they have private , narrow interest , due to that apparent wrong doing , made by Google and certain modification in Wikipedia there . Couldn’t watch until the end ……. .

However , philosophically , it is surly an issue . A retailer , surly huge and global , must very carefully asses its messages . Must be based on totally neutral attitude towards public issues , whether the speech is commercial , and surly if not . For , it can't for example , discriminate in no way : buyers , costumers , employees , races , states and so forth ……. But , if neutrality , is their choice at first place , less hazardous it is one may claim .


P.S : what is really bizarre , is the appearance , of complete inefficiency in the first movie , serving clumsily costumers there , while a branch of BK , could clearly be identified there as the " hotspot " . strange …..

Posted by: El roam | Jan 31, 2018 4:41:50 PM

I guess that I struggle to imagine a court saying that regulations of this sort of pro-net-neutrality speech should be reviewed with greater deference than regulations of natural persons' pro-net-neutrality speech. That said, it's really hard for me to imagine the standard of review making a difference; what sort of regulation of this video would even survive Central Hudson review? Perhaps, as in Kasky, an internet service provider will sue Burger King for deceptively misrepresenting what an Internet without net neutrality would look like? You'd have to think that a court hearing that case would rather easily avoid any constitutional question.

Posted by: Asher Steinberg | Jan 31, 2018 4:14:21 PM

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