Page 306 - The Handbook of Persuasion and Social Marketing

282 The Handbook of Persuasion and Social Marketing

might also depict other unsafe bicycling behavior such as not wearing a
helmet. Although a negligence lawsuit against a nonprofit might succeed,
courts are reluctant to find government policymakers negligent for policy
decisions made in good faith. Assuming there was no bad faith, such as
accepting a bribe, government entities would likely not be held responsi-
ble for government-sponsored or content-mandated social marketing
campaigns. For example, the Supreme Court of Canada recently dismissed
allegations that the government was negligent in designing low-tar ciga-
rettes, in misrepresenting the safety of low-tar cigarettes, and in failing to
warn of the risks of low-tar cigarettes and smoking generally (Regina v.
Imperial Tobacco Canada Ltd., 2011).
Another common issue is whether state regulations are preempted by
federal law. For example, in Lorillard Tobacco Co. v. Reilly (2001),
Massachusetts had enacted restrictions on outdoor and point-of-purchase
sales of tobacco products in an attempt to reduce underage tobacco use.
The court found that the advertising restrictions for cigarettes were
preempted by federal law, which explicitly prohibited further advertising
and promotion regulation by states based on smoking and health. The
court further held that the regulations on advertising for cigars and smoke-
less tobacco violated the First Amendment, but that the prohibition against
self-service cigarette displays was neither preempted by nor a violation of
the First Amendment. Only the self-service display prohibition was nar-
rowly tailored to advance the state’s interest in restricting underage to-
bacco use.
Federal preemption also has been considered in cases regarding state
regulation of political speech. The first of these, Van Bergen v. State of
Minnesota (1995), involved a Minnesota statute that restricted the use of
automated dialing machines to situations in which the receiver had agreed
or the message was preceded by a live operator. Political and charitable
solicitations were covered by this law. A federal court of appeals found that
the state law was “virtually identical” to the federal law and therefore was
not preempted. A more recent state court decision (State v. FreeEats.com,
Inc., 2006) reached the same conclusion.
As discussed previously, one source of funding for social marketing
campaigns is private contributions. In addition, social marketers may re-
ceive funding from the government or from sponsorships by commercial
entities. These last two funding sources present legal issues. In cases in-
volving government funding, the question arises as to whether some par-
ties are being compelled to pay taxes or fees to support speech that they
would prefer not to support. In U.S. v. United Foods (2001), the U.S.
Supreme Court held that federally mandated assessments to fund