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77. Which of the following best supports the airline in a defense based on the First Amendment?
A state law imposes penalties for «any public statement containing false or misleading information about a service or product.» An airline falsely claimed in an advertisement that its competitor had an inferior safety record. The claim was based on erroneous information, found on the website of a nonprofit consumer advocacy group, that the airline assumed to be true. The airline was charged under the state law for making a false statement. No federal statute applies.
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D is correct. Under the test for content-based regulation of truthful commercial speech, the state law would most likely be considered overbroad and not narrowly tailored to serve the interest of providing accurate information to the public. Therefore, the best defense offered for the airline to raise is that the law is overbroad.
A is incorrect. This is not the best defense for the airline. The fact that the statement was made without malice would not help with a defense based on the First Amendment. As stated above, the best defense is that the law is overbroad.
B is incorrect. Although non-commercial speech is protected under the First Amendment, the government may still regulate certain aspects of that speech. Therefore, the best argument would be to challenge the state law for being overbroad.
C is incorrect. A prior restraint is a government action that prohibits speech or other expression before it takes place. Here, the statement has already been made by the airline. Therefore, this does not apply.