Date of Award
Open Access Dissertation
School of Journalism and Mass Communications
August E. Grant
The potential criminalization of deceptive advertising implicates the adequacy of regulatory oversight by the Federal Trade Commission (FTC) and the proper balance between the free flow of information and the Government’s role in consumer protection. Is there a need for, and room for, both FTC and Department of Justice (DOJ) oversight on the deceptive advertising front? These issues have ramifications for the courts, who bear the burden of adjudicating challenged applications of that policy, and also for the orderly functioning of government, which must accommodate the convergence of competing interests and divisions of authority.
Many fraudulent schemes are perpetuated without the use of advertising, but fraudsters frequently incorporate advertising, most often as a lure. To date, advertising has directly intersected with federal fraud statutes most often not because the advertising was regarded as the fraud, but because of its utility as a lure and a jurisdictional hook to bring conduct within prosecutorial reach. Exceptions exist, however, in which advertising appears to have been regarded as the fraud, rather than an instrumentality of a fraud.
Multiple parties—prosecutors, the courts, defense attorneys, advertisers, advertising agencies, media, consumers and policy influencers—have potential roles to play in assuring an acceptable balance between speech rights and consumer-protection efforts. Prosecutorial discretion, however, is essentially all that stands between a deceptive advertiser and a federal, criminal prosecution.
Maye, C.(2014). Handcuffing Speech: Federal Fraud Statutes and the Criminalization of Advertising. (Doctoral dissertation). Retrieved from https://scholarcommons.sc.edu/etd/2858