The General Business Law Can't Regulate ''Not Purely'' Commercial Speech
Paid advertisements can even be noncommercial speech, fully protected by the First Amendment.
In New York Pub. Interest Research Group v. Insurance Information Inst., 161 AD2d 204, 205 [1st Dept 1990], the First Department refused to apply General Business Law 349 and 350 to a series of advertisements because rather than propose a commercial transaction, they expressed the insurance industry's social and political views.
The Court found that the advertisements were not purely commercial speech, and the General Business Law could not constitutionally regulate their contents.
The Appellate Division emphasized that only "purely commercial speech ... can be subject to scrutiny under false advertising and deceptive practices statutes." (Supra, at 205-206.)
When a document contains both commercial and noncommercial messages, referred to as hybrid speech, there are several factors that can be evaluated to determine if the speech is commercial. (Bolger v. Youngs Drug Prods. Corp., 463 US 60, 66-68, supra.)
These factors include whether the material is conceded to be advertisement, whether it refers to a specific product, and whether the disseminator of the information had an economic motivation to disseminate it.