In 2007, Rolling Stone magazine published an issue containing a four page fold out editorial list of various indie rock bands. On the backs of two of the four pages were advertisements for Camel cigarettes, which made references to underground music but did not include artist names or mention the editorial. Many of the artists objected to having their names published in close conjunction with the Camel advertisements and two artists in particular, filed a lawsuit against Rolling Stone alleging false endorsement, violation of the artists' rights of publicity, and unfair business practices. In a recent court decision, the artists' lawsuit was dismissed on the basis that Rolling Stones' use of the artists' names were protected under the First Amendment and was not commercial speech. The editorial was noncommercial speech because Rolling Stone magazine was in the business of selling magazines and not cigarettes, the intended audience of the editorial was music magazine buyers and not smokers, and the Camel advertisements did not reference the magazine nor did the editorial reference Camel. The court stated that the editorial did not become commercial speech by merely being in close proximity to the advertisement and Rolling Stone did not have any direct interest in the sales of Camel cigarettes.
TIP: Merely placing true editorial content near advertising content is not likely to be enough to lose First Amendment protection. Whether your content is truly editorial content obviously depends on the facts of each situation.