Legal Commentary

One of the subplots in the fight over Proposition 8 out here in California has been the appearance of Richard Peterson, a Pepperdine law professor, in ads favoring the proposition.  The ads (here's an example)  identify Professor Peterson as a Pepperdine professor, a fact that has caused some controversy.  The school was forced to issue a statement clarifying its own neutrality on the issue, and requesting the Yes-on-8 forces to alter the ad to delete the affiliation (which I don't think has been done, though I could be wrong about that; see the article linked above for some reporting on this).  Here , here, and here are a sampling of blog entries referencing this issue, if anyone is curious about what blogospheric reaction has been so far; here is an LA Times story on it.

So, when can/should an academic be allowed to use her institutional affiliation in a public statement?  Academics do this all the time, in amicus briefs, media interviews and ads (previously I had seen such ads mainly in newspapers).  Usually (at least in newspaper ads) our names are followed by the "for identification purposes only" disclaimer.  It seems to me that professors have to be allowed to continue using their affiliations, since usually it's the affiliation that provides us with the credibility to speak with authority on whatever issue we're speaking on.  And the affiliation is an objectively true fact, so it's not like there's any misleading going on, at least if the disclaimer is included.  Right?  But the Peterson affair has apparently caused that last statement to come into some question.  On a high profile issue like Prop 8, does an academic's stating her affiliation mislead or otherwise cross some line of appropriate professional conduct?  Is it a matter of TV ads being inherently less susceptible to these disclaimers doing their job? In this case, for example, apparently the Pepperdine request ultimately led to what a Pepperdine official called "a very small disclaimer" appearing under the Pepperdine name; from the news report the Pepperdine official sounded unhappy with that result.)

I'm uncomfortable with muzzling academics by stopping them from using their affiliations -- leaving aside any First Amendment problems in the case of state schools.  I can see the problem, though, that TV ads in particular are susceptible to conveying misleading impressions if disclaimers are not prominently displayed.  (Think of the tiny disclaimers quickly flashed on the screen at the end of automobile ads.)  Maybe this is a case where norms of professional conduct should play a role in regulating how we act, with the basic idea being a responsibility to assess for ourselves whether the affiliation, in light of any disclaimer and given the particular medium and the intended audience, is likely to mislead.   But this is just my first-blush reaction.  Any thoughts?