Florham Park partner Ken Wilbur , a member of the Commercial Litigation Practice Group, and Lisa Warren, assistant general counsel at Johnson & Johnson, co-authored an article for the October 2011 issue of The Docket — the journal of the Association of Corporate Counsel, titled “Three Things Your Legal Team Needs to Know About Public Speech by Commercial Speakers.”
The article argues that speech by a corporation relating to regulation of its business or products is entitled to First Amendment protection as speech on a matter of public concern. This unsettled area of First Amendment law is a matter of growing concern to companies in highly-regulated industries, who have been subject to state unfair trade practice and false claims act litigation for public statements made about the merits of federal regulatory action concerning their products.
The article concludes that this is “an issue a company in a regulated environment cannot avoid,” but that “While the risk is unavoidable, there are arguments for protecting such speech, and steps that can be taken to reduce the chance such statements will be targeted for punishment.”
Click on the PDF link above to view the full article.