First Amendment and Consumer Advertisement
S. Kelvin Fang* | 26.1 | Citation: S. Kelvin Fang, First Amendment and Consumer Advertisement, 26 U. Pa. J. Const. L. 255 (2023).
Imagine receiving a letter in the mail from a credit card company, notifying you of your “pre-approved” status. Relief after being exempted from the complicated screening process, happiness at the prospect of an elevated credit score, elation at receiving a shiny new card in the mail. These are all common feelings when receiving an enticing credit card offer. How then would it feel if you applied, but were quickly denied? And afterwards, that your credit score plummeted due to the ensuing credit report inquiries? The parade of horribles does not stop there. Not only must you face the embarrassment of rejection and the unwarranted drop in your credit score, but also the reality of your new credit score negatively impacting future applications. This exact chain of events led to the FTC bringing a complaint against Credit Karma in 2022. While Credit Karma eventually paid upwards of $3 billion to affected consumers, many defrauded consumers are not so lucky. The current state of commercial speech regulations can make recovery difficult, if not impossible, because they center on the speaker’s right to freely promulgate ideas. Advertisements qualify as protected speech under the First Amendment so long as they are not blatantly deceptive. Even if a challenge is brought against deceptive advertising schemes, Unfair and Deceptive Practice Statutes (“UDAP”) are unwieldy in practice and can be riddled with loopholes that allow an advertiser to escape liability.
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* University of Pennsylvania Carey Law School, J.D., Candidate; Brandeis University. BA 2021.