Sorry, Mr. Musk. Advertising speech is not free speech.

This is a post for the non-marketers out there, so if you’re in marketing, take a knee on this one. Last week, Elon Musk (of Tesla and SpaceX fame) tweeted that he had plans to take Tesla private and that he had the funding secured to do so. Let’s leave aside the SEC issues for a moment (and whoah boy, there are issues) and concentrate on Twitter as a public platform.

Many people conflate political speech, free speech, libel/slander, and advertising speech. We won’t get into a legal definition of each one, but suffice to say, just because a certain politician tweets marginally-true (or outright false) stuff doesn’t mean *you* can. That is especially true of a CEO of a publicly-traded company. What Mr. Musk says on Twitter is not simply his “personal opinions” and could be interpreted as “advertising speech”.

Advertising speech is one of the only types of speech that *must be true* by law. Most people don’t realize that…until it’s too late. Puffery is generally okay (Tesla has the best cars and you should buy them!), but falsehoods are not (Tesla has completely autonomous driving options). The FTC takes a dim view of false advertising in general, and specifically as it relates to certain categories of products.

It’s fascinating stuff. Elon Musk, you might want to read it.

#marketing #freespeech #advertising

Jason T Voiovich

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