Home -> Law Blog Directory -> Consumer Law Blogs -> 43(B)log

Consumer Law

: 43(B)log

US News rankings and false advertising

By Rebecca Tushnet

Via Zach Schrag, Inside Higher Ed reports on what appear to be deliberate misrepresentations by some schools to improve their reports on underlying metrics so as to rise higher in the US News rankings, which have a huge effect on students' decisions. Given that the purpose for which the schools provide the information is essentially advertising, could anyone sue under the Lanham Act? With standing trending the way it is, it's almost a useless question, but there are cases allowing Lanham Act claims against advertisers--not publishers--for providing publishers with information essentially as a sales technique--and cases going the other way as well. (It's also possible to game the US News system with accurate reports by investing in particular ways designed to improve rankings even if students don't benefit, but in general advertising law doesn't care about deliberate design decisions of that sort.)

Some of the conduct discussed in the post might even rise to the level of knowing deception required for liability for noncommercial speech. But then we'd have the issue of whether self-touting speech can constitutionally be punished, if deliberately false, in the absence of any slurs against the competition. In the context of political campaigns, one state Supreme Court has said that punishing deliberately false speech is impermissible in the absence of defamation; would that reasoning apply to colleges' statements about themselves, or is it a special rule for campaigns? Are defamation concerns really absent when the speech is self-promotional? Touting oneself is also necessarily a comparative statement about one's competitors.

Full post as published by 43(B)log on September 14, 2009 (boomark / email).