In this five part series, originally published in the Summer 2014 edition of the Media Law Resource Center Bulletin,[1] we take an in-depth look at the native advertising phenomenon and the legal issues surrounding the practice.  After canvassing the many faces of native advertising and the applicable law, the series ultimately examines the pervasive assumption that all native advertising is, and should be regulated as, “commercial speech.”  This assumption presumes that all native advertising is equal under the eyes of the law, and we come to the conclusion that it probably isn’t. Native advertising that is closer to pure content than pure commercial speech may deserve greater or even full First Amendment protection, which would carry significant implications for government regulation[2].

Part 1: Introduction to Native Advertising

Part 2: Early Native Advertising and the Current FTC Regulatory Landscape

Part 3 below provides a quick overview of the commercial speech doctrine the protections traditionally afforded to advertisers by the First Amendment. 

—PART III—

Commercial Speech and the First Amendment
One question that curiously has only sporadically come up in the native discussion is the level of First Amendment protection that should be afforded to such speech. From a constitutional and regulatory perspective, the critical question is whether native is considered “commercial” speech under Supreme Court precedent. If native is considered commercial speech, then government regulations are subject to intermediate judicial scrutiny. If native is considered noncommercial, then government regulations are subject to the more heightened strict scrutiny standard.[3] This section provides a primer on the First Amendment and commercial speech before turning to its application to Native Advertising.