I couldn't help but think of you when I saw this Jon. And just in case anyone is wondering, I don't think Atkins has a prayer of winning this case.
Atkins Diet Company “Pleads First Amendment,” Seeking Protection from Heart Disease Claim in Florida Court
Atkins Asks Court to Find Life-Threatening Diet Advice Protected Under Free Speech Guarantees; Judge May Rule Next Week
West Palm Beach, FL—Rebuffed in its first attempt last month to have a Florida court throw out a landmark personal injury lawsuit challenging the safety of the controversial Atkins Diet, Atkins Nutritionals has submitted a motion arguing that “the ideas and information in a generally circulated self-help book and an associated website are fully protected by the First Amendment even if they cause harm to some readers,” even speech with potentially life-threatening consequences.
Atkins contends that the First Amendment permits it to make false and misleading statements in the course of its business, without incurring liability to its customers. But Dan Kinburn, Gorran’s attorney and senior counsel for the Physicians Committee for Responsible Medicine, notes First Amendment free speech guarantees do not apply in cases of false speech. “You can’t yell ‘fire’ in a crowded theater, you can’t run false ads in magazines, and you can’t tell people anxious to solve a health problem that it’s safe to follow a dangerous diet,” he says.
http://www.pcrm.org/news/update041119.html
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Generally, the test for commercial speech is different from that of traditional first amendment speech (ie - political speech); commercial speech is a less protected and the Court does not readily turn corporate propaganda into constitutionally protected political free speech.
The test for whether or not commercial speech can be regulated is as follows:
1. Is the expression misleading or regarding unlawful activity? If yes is the answer, then protections are slim.
2. Is there a substantial government interest in regulating the commercial expression? If yes, then go to 3. If no, then gov't can not regulate the speech.
3. Does the regulation directly advance the substantial government interest? If yes, then go to 4. If no, then the gov't can not regulate the speech.
4. Is the regulation more extensive than necessary? In other words, does the rule have a negative effect on activities other than those targeted. If yes, then often the gov't will not be allowed to regulate the speech.
Simple, eh?
Cato Jr.
Mr. C-
Thanks for that... actually an interesting case. Even though you don't think Atkins has a chance... this case seems a little bit like that lady at McDonald's spilling coffee in her lap. Atkins, like coffee, has done many good things for many people... the one guy who has a problem with it... who was in bad enough shape already to need to go on Atkins, has to come along and mess everything up. As far as my whereabouts, I left school with a horrible headache and nausea after first period today. I'll be there tomorrow.
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