Legal News

Legal Sea Foods Testing the Legal Limit of Commercial Free Speech

By Dan Slater

Legal Sea Foods, the Boston restaurant chain whose slogan is “If it isn’t fresh, it isn’t legal!”, is testing the limits of free speech with the Massachusetts Bay Transportation Authority.

Over at Fortune’s Legal Pad blog, Roger Parloff details a series of Legal Sea Foods ads that have run on the sides of Boston buses and trolleys. The campaign, devised by the DeVito/Verdi agency in New York, plays on a “really fresh fish” theme; each ad depicts a cartoon fish with a message bubble containing a borscht-belt-style insulting (i.e., “fresh”) remark.

“This conductor has a face like a halibut,” read one ad that the MBTA yanked. MBTA spokesman Joe Pesaturo said that the MBTA considered the ad “disparaging to employees,” “disrespectful,” and “not appropriate.” Another ad, which bore a simple “Bite Me” message was also briefly pulled down, but that was only due to a “miscommunication” between the MBTA and its transit advertising contractor, according to Pesaturo. (A DeVito/Verdi rep says that Pesaturo is mistaken, and that the MBTA barred the “Bite me” ad, too.)

The MBTA, reports Parloff, apparently had no problem with ads that proclaimed, “Hey lady, I’ve seen smaller noses on a swordfish,” and “This trolley gets around more than your sister.”

Legal Sea Foods shot back at the MBTA with First Amendment lawyer Martin Garbus, of Davis & Gilbert. (Previous clients: Lenny Bruce, Daniel Ellsberg, and Don Imus.) Garbus wrote a letter threatening legal action on the grounds that the MBTA was violating Legal Sea Foods’ commercial free speech rights. (Parloff notes that commercial speech gets less First Amendment protection than political speech.)

The halibut ad could not violate the MBTA’s rules against “demeaning or disparaging” advertisements, Garbus reportedly argued, because “no reasonable person would take this quip by a talking fish seriously.”

Here’s the temporary resolution: On Thursday, according to Parloff, Legal Sea Foods began running a new set of ads that are the same as the old ones, except that a red “censored” banner covers the offending words.

After mulling over the propriety of these “censored” ads for a week, the MBTA OK’d them.

Full post as published by Law Blog - WSJ.com on June 30, 2008 (boomark / email).