Other examples of false statements of fact that do not receive First Amendment protection include false advertising, as in Lexmark International, Inc. v. Static Control Components, Inc. (2014) and POM Wonderful LLC v. Coca-Cola Co. (2014), and commercial speech that includes misleading statements as in Central Hudson Gas & Electric Corp. v. Public Service Commission (1980).
[2]The United States Supreme Court first articulated the basis for excluding false statements of fact from First Amendment protection in Gertz v. Robert Welch, Inc. (1974).
The newspaper "contained serious inaccuracies" about the attorney; namely, that he was supporting the police system as a goal to entrench a Communist conspiracy in the United States.
[3] Justice Powell, in writing the decision of the Court reasoned that false statements do not "advance society's interest in 'uninhibited, robust, and wide-open debate'".
[4] Society had some interest in ensuring that debate covered truthful matters, as a key element of public participation in a democracy.
Criminal liability, although uncommon, can be made although they are usually subject to the same limitations imposed on civil suits in terms of elements to be proven.
Sullivan argued that a full-page advertisement in the New York Times incorrectly asserted that his police department let civil rights violations against blacks occur.
[11] The Court held that even if the advertisement was incorrect, the fact that there was no intent to harm Sullivan by the newspaper ("actual malice") meant that the lawsuit could not proceed.
[19] Along with government officials, the Supreme Court held in Gertz v. Robert Welch, Inc. (1974) that people who "have assumed an influential role in ordering society" are considered public figures.
In Dun & Bradstreet, the Supreme Court considered whether a credit reporting service which distributed fliers to their only five subscribers qualified as an action of "public concern".
[22] This vague area of law in regards to false statements of fact can lead to a variety of arguments over what is relevant or has public importance.
The Court held that because plaintiff Gertz had not "thrust himself into the vortex of this public issue", the newspaper could not be freed from liability of their false statements.
[3] In Riley v. National Federation of the Blind of North Carolina (1988), the Supreme Court struck down a license requirement and limits on fundraising fees for telemarketers as unconstitutional and not narrowly tailored enough to survive First Amendment scrutiny.
[27] The 2012 decision United States v. Alvarez struck down part of the Stolen Valor Act of 2005, which prohibited false claims that a person received a military medal.