Confusion, deception, and mistake are generally unlawful in marketing campaigns. 14 U.S.C. § 1125 (a) (Lanham Act section 43(a)). Yet, confusion, deception, and mistake are typically lawful in political campaigns. U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech, or of the press”); amend. XIV (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”). Our democratic republic assumes informed and participating citizens. Yet, judicial fairness recognizes some evidence is privileged against disclosure. Fed. R. Civ. P. 501.
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