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Key - J385 Final Exam - Winter 97
The Deals filed suit claiming appropriation, publication of private facts and intrusion. Each of these claims must be addressed separately since the legal standards are different for each one. Appropriation: The Deals will not be successful. [2 pts]
The appropriation claim would be based on two possible uses of the names or identifiable photos of the Deals: the broadcast of the "DONE DEAL" segment of "COP VIDEO," and the use of a ten-second clip from the segment in promotional spots for the show. In order to successfully sue for appropriation the Deals would have to prove that the use of the Deals names and the images in which they are identifiable was a commercial use. They will be unable to meet this requirement since "COP VIDEO" falls into what Pember calls "the news and information exception." (Pember, p. 227) The segment does not include transactional messages (i.e. offers to buy or sell good or services) and the subject matter is newsworthy. Because "COP VIDEO" is editorial speech, the promotional spot for it will fall into the "incidental use" exception or what Pember calls the "Booth Rule." As Pember notes, in Anderson v. Fisher Broadcasting (1986) the Oregon Supreme Court held that the use of clips from a news programming to promote informational programming is not a commercial use. Publication of Private Facts: The Deals will not be successful. [2 pts]
In order to win a private facts suit in Oregon, the plaintiff must show "that the information "was either obtained or broadcast in a manner or for a purpose wrongful beyond the unconsented publication itself..." (Anderson v. Fisher Broadcasting (1986). While it is clear that the Deals did not consent to the taping or presumably to the broadcast itself, the segment concerns matters of public interest (drug enforcement and police performance in the line of duty) and there is no evidence of any other motive for the broadcast. Also, the Deals would have difficulty showing that private facts were broadcast. While the raid did take place in their home, information about the raid and the arrest would not be considered private facts. Intrusion: The Deals will not be successful. [2 pts] Magenis v. Fisher Broadcasting [4 pts] In Oregon, to win an intrusion suit the plaintiff must show that physical intrusion, that is, the unauthorized or uninvited entrance into private space, took place and that the intrusion would be highly offensive to a reasonable person. While the highly offensive standard is a jury question and it is possible that a jury would find for the Deals, Magenis v. Fisher Broadcasting, an Oregon Court of Appeals decision, is very similar to the facts presented here. Given that, in Magenis the court indicates that the facts would not support a finding of highly offensive, it is not likely that the intrusion claim would be successful here.
To win his false light suit, Professor Magic must show that the publication left a false impression, that is, it portrayed the professor as doing or believing something that is in conflict with his true beliefs or behavior; that the impression is highly offensive to a reasonable person and that the publication acted with actual malice. False impression: Professor Magic would argue that the manipulated photo leaves a false impression because he has never lectured wearing a clown suit. WWM will argue that the use of the clown suit is simply the use of editorial license. Magic is known for his wild clothing combination and putting the professor in the clown suit is simply a comment on his clothing. Readers, WWM will argue, would not read the photo illustration literally. A false light suit will fail when a plaintiff's previous behavior is consistent with the impression left by a publication. (Martinez v. Democrat-Herald) Here the previous behavior is not consistent with a literal reading of the photo illustration; however, if the photo illustration is read as commentary on the behavior, no false impression is created. The question states that "a new photograph" of the plaintiff appeared on the cover which suggests that the cover illustration did not signal to the reader that it was not an actual photo. Since a jury could find that a false impression was created, the false impression prong of the analysis does not determine the outcome of this suit. Highly Offensive: In Oregon, the highly offensive standard is going to be a jury question in most cases. (Dean v. Guard Publishing) Here the question will pivot on the jury's perception of the purpose of the publication. If the photo illustration and the story are perceived as being newsworthy then it is likely that a jury would not find the publication to be highly offensive. If they are seen as being an attempt to ridicule the professor, then it is likely the jury will find the publication highly offensive. As with the first prong, we cannot determine the outcome of the suit on this part of the analysis. Actual Malice: The facts are clear. The cover was the result of combining two unrelated photos. There is no question that the publication knew the resulting photo illustration was literally false. If the jury accepts the plaintiff's interpretation of the photo illustration as outlined above, then a finding of actual malice follows; however, if the jury accepts the defendant's interpretation, then the use was not a "purposeful distortion of the truth," (Pember, p263) which would be actual malice, but rather a colorful way of stating the truth.
(a) What will Flack have to do to bring an infringement suit? Before bringing the suit Flack will have to register the copyright for his plan. (Pember, p 476-77) (b) Flack's suit will not be successful. In order to win an infringement suit, Flack will have to show that his plan was an original work, that the defendant had access to it, and that there is substantial similarity between his plan and the defendant's campaign. He will be able to show access since he gave the Committee a copy of the plan; however, he will have some difficulty showing originality and even greater difficulty showing substantial similarity. Flack may be able to show originality for the entire plan based on the combination of specific recommendations -- the proposed slogan, the mock ads and the specific color combination. However, he would not be successful in claiming originality for the generic components because they are common elements to most if not all similar public relations campaigns. The fact that he spent time and effort on his plan does not create an original work. (Feist Publications, Inc. v. Rural Tel. Serv. Co.) If we assume that the plan is sufficiently creative in the combination of specific recommendations to be an original work, Flack must show substantial similarity. Given the generic nature of the plan's components, he will have to show "substantial similarity in the manner in which the ideas are expressed in the two works." (Pember, p480). He will not be able to meet this requirement.
The Youth Protection from Tobacco Addiction Act of 1997 would restrict truthful speech about a legal product in several ways:
The use of tobacco is a major health problem and there is no question as to the authority of Congress to take steps to address the problem. However, in Central Hudson v. PSC of New York, the Supreme Court held that truthful commercial speech about lawful products or activities is protected under the First Amendment. The substantial state interest in discouraging tobacco use is clear, so the Youth Protection Act meets the first part of the Central Hudson Test. The second part of the Central Hudson Test requires that that the government demonstrate that the regulation of advertising directly advances the state interest. While the courts generally have accepted with little examination the assumption that a reduction in advertising and marketing for a product will result in decreased consumption of the product, in recent cases (EDENFIELD V. FANE, RUBIN v. COORS BREWING CO.,and 44 LIQUORMART, INC v. RHODE ISLAND) the court has taken a harder look a the relationship of the regulation to the government interest. It is possible that the Youth Protection Act would be vulnerable. For example, In Rubin, the court held that a labeling ban was unconstitutional since other government regulations undercut the effectiveness of the ban. A similar argument could be made here focusing on government policies, such as, price supports for the growing of tobacco. The relation of the state interest in reducing consumption to the total ban on the use of brand names, logos and other visual design elements is somewhat tenuous. These elements are intended to create brand identification. Arguably they attract smokers to specific brands of cigarettes rather than attracting non-smokers to start smoking. Absent evidence to the contrary, it is difficult to see how this part of the Act would directly advance the interest in decreased consumption. The third part of the Central Hudson Test requires a "reasonable fit" between the state interest and regulation. Here the Act calls for a total ban on advertising of tobacco products. In Liquormart 44, the court said the government carries a "heavy burden" in justifying a total ban on advertising of a product. In Central Hudson, the Court held that the state's total ban on advertising promoting the use of electricity was unconstitutional because it was "more extensive than necessary" since it prohibited advertising could promote energy conservation. Here, the total ban on advertising would reduce the amount of available health information since it would eliminate the current required health warnings that appear in all tobacco advertising.
Your essay should address some selection of the points made below. They are taken from the case law and the briefs available on the Challenges to the CDA page. Your answer should include at least the following themes: the weight given technological differences in the application of the First Amendment to new technology (i.e. the Internet is not broadcasting); the vagueness of the indecency standard; and the right of adults to receive information. "it simply is not clear, contrary to what the government suggests, that the word "indecent" has ever been defined by the Supreme Court. See Alliance for Community Media v. F.C.C., 56 F.3d 105 (D.C. Cir. 1995) p. 130, footnote 2: ACLU v. Reno, 1996 U.S. Dist. LEXIS 1617; 24 Media L. Rep. 1379 (E. Pa., 1996)
1. The CDA criminalizes a broad range of constitutionally protected "indecent" speech. The Act covers not only the "commercial" purveyors of "pornography" that are the focus of the Government's argument, but also noncommercial speakers (who constitute the vast majority of all speakers in "cyberspace") as well as non-prurient images and text that have serious value for adults and many minors. Indeed, the Act by its terms applies to the speech of "libraries and educational institutions" -- speakers hardly likely to be found selling "pornography." 2. The district court correctly found that the CDA operates as an unconstitutional ban of indecent speech among adults in cyberspace. Because of the nature of the Internet, the Act's prohibition on displaying indecent expression in a manner "available" to minors makes it virtually impossible to communicate an indecent message to adults. As this Court has held for forty years, such a ban violates the First Amendment. See, e.g., Sable Communications v. FCC, 492 U.S. 115, 126-27 (1989). The Government nevertheless argues that the CDA's draconian impact on protected speech will be eliminated by the affirmative defenses Congress provided. That argument ignores the district court's detailed factual findings, none of which is challenged here. Based in part on the testimony of the Government's own expert, the district court found that it is technologically impossible for speakers to utilize those defenses when they are speaking in all but one of the modes of communicating in cyberspace. Thus, the Act completely bans all "indecent" speech by users of newsgroups, listservs and chat rooms. The Government argues that the Act should nevertheless be upheld because speakers using one of the modes of communication on the Internet --the World Wide Web-- can use the Act's affirmative defenses. But the district court found that many Web sites cannot screen for age, and even where screening is possible it would be prohibitively expensive for speakers other than commercial entities that charge money for access to their speech. The existence of this very limited outlet for indecent expression on the Internet does not make the Act any less of a ban of speech for the vast majority of speakers. 3. The district court also correctly concluded that the CDA is not likely to survive the strict scrutiny such a content-based burden on protected speech requires, because the Act will not directly and materially advance the Government's interest in preventing minors from gaining access to indecent expression, and because there are far more effective alternatives that would impose no burden on protected speech. Of all the indecent communications on the Internet, a very large percentage are posted abroad, and there is no speaker-based control government can impose that would prevent those communications from being available to every home that has access to the Internet. Thus, because of the global nature of the Internet, the CDA cannot and will not prevent minors from gaining access to indecent material. But parents can prevent access by their children. The vast majority of American families connected to the Internet subscribe to one of the major online service providers, which enable parents either to block or to screen selectively their children's access. Other filtering software is also available. If parents exercise parental responsibility, they can prevent their children from accessing indecent communications, including communications posted abroad. If they do not, no government regulation of speakers can prevent minors from gaining access to indecent communications. In addition, such "user-based" blocking or screening would have no effect on the ability of adults to communicate and to receive constitutionally protected, though indecent, messages and images. By contrast, the "speaker- based" prohibitions of the CDA chill speech among adults and reduce the adult population to reading and viewing only what is suitable for children. 4. The district court also correctly concluded that the CDA is likely to be found unconstitutionally vague. Below, the Government's lawyers and experts could not begin to explain how speakers could determine what speech the CDA criminalizes. The amicus brief filed in this Court by the CDA's principal Congressional sponsors dramatically underscores the intractable vagueness of the Act's criminal prohibitions. The brief acknowledges that even material with "truly serious value" could be found criminal if a jury determined, on an ad hoc basis, that a "host of" other (named and unnamed) "variables" outweighed the value of the speech.[8] It is hard to imagine a criminal standard that provides less guidance, or to conceive of a speech prohibition that would have a broader chilling effect -- particularly given that it must be understood and applied by millions of individual speakers, often speaking spontaneously and without benefit of legal advice. 5. The Government's attempt to salvage two sections of the CDA, __ 223(a)(1)(B) and 223(d)(1)(A), by redefining their scope, is unavailing. First, even as redefined on appeal, these provisions would apparently have the same unconstitutional impact on speech among adults as the "display" provision. Second, the Government's reliance on Ginsberg v. New York, 390 U.S. 629 (1968), is entirely misplaced. Unlike the CDA, the statute at issue in Ginsberg prohibited only the commercial sale of books deemed "harmful to minors" when the bookseller knew the purchaser was a minor, and it had no effect on sales to adults. Third, the Government's redefinition of these provisions does not eliminate their unconstitutional vagueness. Thus, the district court properly enjoined enforcement of all three challenged provisions. But if there is any question about these two, the proper course is to affirm the preliminary injunction and allow the Government to develop its new arguments on remand in opposition to permanent relief. 6. Finally, the Court should decline the Government's invitation to rewrite the Act, and should leave to Congress the delicate policy judgments any narrowing construction would require. Congress did not fully understand the Internet, or what can and cannot be done in cyberspace, and it is impossible for this Court to discern how Congress would have legislated if it had had the benefit of the comprehensive record compiled in this case. The Internet may prove to be the most important communications medium of the twenty-first century, and any attempts to regulate speech in that medium should be undertaken with the care and precision such a speech-enhancing medium deserves.
Under Sec. 312, the station is required to provide access to federal candidates. (Pember, pp. 557-58) While the station may refuse to accept certain formats at certain times (e.g. 1 hour block on Sunday afternoon), it may not assert editorial control over the content of candidates' advertising. (class lecture)
Based on the Guides for the Use of Environmental Marketing Claims, there is a good chance the watchdog group's complaint will be successful. Unqualified claims of "photodegradable" may be deceptive. In some disposal media, the claim may be true; but if the "trash bags are customarily disposed of in incineration facilities or at sanitary landfills that are managed in a way that inhibits degradation by minimizing moisture and oxygen," the claims will be deceptive. Since most disposal facilities are not designed to promote degradability, the claim would mislead the consumer since the material claim would not be true in most markets.
The Acme Oil Co.'s claim of better gas mileage leaves the consumer with the impression that use of the gasoline will result in better performance under average driving conditions. It requires a "Reasonable Basis" level of substantiation. Absent objective proof of the claim, the ad is deceptive. The tests provided to substantiate the claim of better mileage do not meet the "reasonably prudent business person" standard. In the tests, highly trained professional drivers drive the cars at a steady 55 miles per hour on a test track for six hours. These test drives do not replicate normal driving conditions; therefore the tests do not support the claim.
In Infinity Broadcasting Corp of Pa., 3 F.C.C. Rcd. 930, , 62 P&F 1218 (1987), the FCC established new standards for determining indecent speech. The standards require that the language be evaluated in context. KWAK-FM broadcast a 45-second section of tape containing vulgar language. The segment was part of the news report on the trial of a crime boss. Clearly the use was not gratuitous and was an integral part of news and information programming. In a similar case concerning the broadcast of a sound bite from the trial of crime boss John Gotti in which Mr. Gotti repeatedly used a common vulgarity, the FCC ruled that the broadcast was not indecent. (Mr. Peter Branton) The Commission noted that "we traditionally have been reluctant to intervene in the editorial judgments of broadcast licensees on how best to present serious public affairs programming to their listeners."
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