Members of Congress have received numerous complaints about an off-road vehicle called “Liferisk.” It has three balloon-tire wheels and a 200 horsepower engine. It is designed to drive over any surface at speeds up to 80 miles per hour. Several people have been killed when their Liferisks overturned, and a number of others have been injured. Congress debated forbidding the manufacture of Liferisk, but it is made by an American company and is exported quite successfully overseas, thereby helping America’s balance of payments. Instead, Congress made it illegal to advertise Liferisk in the United States. (No one argues Liferisk’s ads are misleading or deceptive.) Liferisk’s manufacturer asks a federal court to declare the law a violation of the manufacturer’s First Amendment

rights. How should the court rule? Why?

What will be an ideal response?

The court should apply the Central Hudson Gas & Electric v. Public Service Commission test as modified by the SUNY v. Fox case: (a) Does the advertisement have any First Amendment protection? Here, the product being advertised is not an illegal one. Congress specifically chose not to outlaw its manufacture. Assuming the ads are not deceptive or misleading, the ads have some level of First Amendment protection. (b) Is the interest the government is trying to protect a substantial one? The interest is an important one—preventing further deaths and injuries. (c) Does the regulation directly advance the government’s interest? It is arguable that eliminating advertising of the product in America will reduce the demand for the product. The Supreme Court accepted this type of argument in Posadas de Puerto Rico v. Tourism Co. (d) Is there a reasonable fit between the regulation and the government’s interest? As to this prong of the test, although there is a fit between banning the ads and trying to prevent death and injury, there may be other methods with a less sweeping impact on the First Amendment. Congress could ban the making of the vehicles. Or it could require that warnings be given to prospective buyers. Or it could prohibit the manufacturer from selling the vehicles until they are made safer. However, after Posadas and Fox, it may be that the Supreme Court would not find a ban on advertising as being too broad. In that case, the ban would stand.