New York Attorney General Andrew Cuomo has asked a federal court to toss Arbitron’s lawsuit against him to keep the AG from blocking release of Portable People Meter (PPM) data. Cuomo says Arbitron’s First Amendment claims should first be tried in a New York state court. We’ve been reading the legal arguments (boy, do we know how to have fun!) and it seems the whole matter hinges on an esoteric legal point.
After being notified by Cuomo’s office that it was about to bring suit in state court, Arbitron commercialized PPM two days early in New York and other markets and sued Cuomo in federal court. Arbitron argues that its audience estimates supplied to clients are noncommercial speech, entitled to the same protection as a newspaper or book, since the clients subscribe to the service itself and are not urged to buy or sell anything to benefit Arbitron in the reports.
Not so, says the AG, who contends that the ratings reports are commercial speech, just like an ad. “Commercial speech is entitled to a lesser degree of First Amendment protection than other types of speech, and false or misleading commercial speech is wholly unprotected. Whether the commercial activity is in fact false or fraudulent is precisely the question to be litigated in the state court,” Cuomo said in arguing for dismissal of the federal lawsuit. He also contends there is no issue of prior restraint, since any action barring Arbitron from publishing its ratings in the State of New York would come only after a state court determines that state law has been violated and “that an injunction fully comports with the First Amendment.”
Just because the dispute involves published information, the AG says Arbitron is not entitled to any First Amendment shield “to frustrate a state proceeding seeking to enforce laws against fraudulent or deceptive business practices.” Cuomo contends that Arbitron is wrong in trying to define commercial speech as only advertising and cites cases that he claims support the view that radio ratings information is commercial speech.
“If Arbitron’s ratings reports are false commercial speech, it has no First Amendment right to disseminate them,” the AG said in arguing for the dismissal. He also insisted that Arbitron has failed to show that it would suffer any irreparable harm from allowing the state court case to proceed.
RBR/TVBR observation: Certainly the AG has authority to investigate fraud, but his fraud claims are lacking in any substance. He just simply doesn’t like the outcome he imagines from PPM measurement. Should any judge at any level be so injudicious as to OK prior restraint, such an order should be quickly quashed by an appeals panel and the judge ordered to take a remedial course in basic constitutional law.