Media Law Final Exam

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Valentine v. Christensen (1942)

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• Christensen handed out handbills to people to get them to come to his Submarine attraction.
• Christensen was accused of violating the sanitary code. He argued it was his first amendment right in front of the SCOTUS.
• SCOTUS said commercial speech is not protected by the 1A.

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New York Times v. Sullivan (1964)

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• Rejects Valentine v. Christensen and begins to progress toward a commercial speech doctrine.
• L.B. Sullivan also argued that the material in question had no protection because it was in a paid advertising section of the NYT.
• SCOTUS: It doesn't matter if it's commercial or in a news story, it's protected.

Front 3

Bigelow v. VA (1975)

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• In 1971, an ad for an abortion clinic in NYC ("The Women's Pavilion of NYC"). Abortion was legal in the state of New York, but abortion was not legal in the state of Virginia. Jeffrey Bigelow, the managing editor of the VA weekly (Charlottesville, VA), was charged with violating the state law that prohibited publication, lecture, and advertisement encouraging abortion.
• VA state officials said that it didn't violate his 1A rights, because it was in an advertisement.
• SCOTUS ruled that just because there is commercial activity, doesn't mean there's no 1A protection. We live in a capitalist economy. Much of what we discuss is tied to the buying and selling of goods and services. It's important that we can freely discuss these things if we want to make good decisions so our economy can work.
• This is still in the realm of political/social issues.

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Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council

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• Virginia prohibited licensed pharmacists from advertising the price of drugs. The state interest was in keeping pharmacists dispensing drugs, and keep them from getting caught up in price wars and advertising.
• Pharmacy Board argued that since Valentine v. Christensen there really hadn't been a case regulating purely commercial speech.
• The Citizens Consumer Council argued that they needed to know where they could afford to take the drugs they needed, and they were entitled to that information. The statute put a financial burden on obtaining that information, especially on the elderly.
• SCOTUS recognized for the first time a constitutional right to speech motivated by pure profit. Officially overturns Valentine

Front 5

Nike v. Kasky (2003)

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• Kasky sues Nike, arguing that their PR statements are false, misleading, and deceptive.
• Nike spent a lot of money during this time defending themselves from claims about their overseas practices.
• Press Releases said they didn't use sweatshops, etc.
• Nike claimed that it was not purely commercial speech
• CA State Supreme Court ruled that it was commercial speech
• SCOTUS never decided the facts, saying that they never should have granted cert.

Nike paid Mark Kasky 1.5 Million dollars.

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What speech is commercial?

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• From US v. Bell speech may be considered commercial if
○ The speech is in an advertisement
○ The speech is about products or services
○ Economically motivated

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Commercial Speech doctrine

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a. The government may regulate advertising that is false, misleading, or deceptive
b. The government may regulate advertising of unlawful goods or services.
c. Truthful advertising for legal products may be regulated if the government can satisfy three requirements
i. There is a substantial state interest to justify the regulation
ii. The ban has to directly advance the state interest
iii. The state must show there is a reasonable fit between the state interest and the regulation (a weaker version of the "narrowly tailored" idea).

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Lanham Act

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○ Prohibits ads from making false or misleading claims about products
○ 1989 revisions said you couldn't lie about competitor's products either
○ Allows for lawsuits to be brought by one company or individual against another if false or misleading claims are made

Front 9

UHAUL international v. Jartran (1986)

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○ Jartran, a startup, used inaccurate price comparisons in an ad
○ Also made the U-Haul trucks look really small compared Jartran trucks, even though they were the same size, and dirty old U-Haul trucks next to shiny new Jartran trucks.
○ U-Haul took Jartran to court, and showed
§ Consumer confusion
§ Financial losses
○ Court ruled in favor of U-Haul and awarded 40 million dollars (twice what was spent on advertising).

Front 10

Rubin v. Coors Brewing Co. (1995)

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§ Federal law forbade the listing of alcohol content on cans of beer or malt liquor.
§ Federal lawyers argued that the law was intended to keep young people from choosing their beer based on alcohol content.
§ In a unanimous opinion, the SCOTUS said that decreasing alcohol use in young people is a laudable goal, the government failed to prove that this achieved the goal.
§ Ensures that it will fail to achieve its goal by making sure that it's only banned on the product itself, meaning that alcohol content wars are pushed into advertising.

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Casino Owners Case

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§ Broadcasters teamed up with Casino owners in NV, NJ, Mississippi in the late 1990s to challenge a federal law that banned broadcast advertising for gambling.
§ The federal government had allowed exemptions for
□ state-run lotteries,
□ advertising for casinos on Indian Reservations, and
□ any non-profit lotteries.
§ 9COA says it's unconstitutional because the censorship was highly unlikely to decrease gambling, which was the substantial state interest.
§ 5COA rejected the challenge and upheld the ban.
□ State interest
□ Advanced directly by the regulation
§ SCOTUS sides with the 9COA
□ Advertising ban is a violation of 1A b/c it sacrifices an intolerable amount of truthful speech about lawful conduct.
□ Preferred position balancing theory --> you have to favor free speech

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What is "False or Deceptive"

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a. There must be a representation, omission, or practice that is likely to mislead the consumer
i. Doesn't have to actually mislead a particular person
b. The act or practice must be considered from the perspective of a consumer who is acting reasonably
i. Not necessarily everyone, but the target audience
c. The representation, omission, or practice must be material to the purchasing decision.
i. Keeps suits against things that are incorrect but not necessarily pivotal to decision making from popping up all over

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Voluntary Compliance

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if an ongoing ad campaign is deemed deceptive by the FTC, but the advertiser has a clean record, the company may voluntarily agree to pull the ads to avoid fines or punishment. A sort of "first-strike" rule.

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Consent Agreement or Consent Order

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a written agreement b/t the FTC and the advertiser in which the advertiser agrees to refrain from making specific product claims in future advertising. IF they make the claim again, bad things happen.

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Litigated Order

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an order issued by the FTC requiring a certain advertisement be stopped

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Substantiation

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requires an advertiser to prove the truth of advertising claims made about a product
• Advertisers are asked to substantiate their claims in front of panels of experts
• Only claims that seem most suspect are subject to substantiation.
• Most of the time the data comes from the manufacturer's own scientists, so sometimes the substantiation is asked to come from an outside source
• Wonder Bread advertised that their bread made bones stronger and improved brain structure. The claims could not be substantiated.

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Corrective Advertising

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FTC forces advertisers to inform the public that its advertising in the past has not been honest or has been misleading

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Injunctions

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• Restraining orders stopping an ad
• Injunctions are only imposed when
○ The ad clearly violates the law
○ Can cause harm to consumers
○ No prospect the practice will stop

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Trade Regulation Rules

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• Prohibit specific advertising claims about an entire class o products
• These rules explain in detail what constitutes an illegal practice
• EX: Fruit Juice must be at least 10% juice.

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Family Hour

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An hour of family-friendly programing implemented by FCC in 1975 in response to challenges to racism/sexism/abortion in television and ABC's "Jiggle TV"
Writer's Guild took the FCC to court because networks were starting to self censor their material. Ct. ruled that the Family Hour regulations violated 1A.

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Trademarks

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any word, symbol, or device (or combo of the three) that differentiates an individual's or company's goods and services from competitors.
○ Brand names
○ Shapes
○ Slogans
○ Telephone numbers
○ Colors - Corning has a trademark on pink insulation
○ Parodies of trademarks are not suable

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Collective Mark

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○ A group of people get together and decide that they want to certify the thing they do.

EX: Realtors all use the Realtor logo to distinguish themselves from other people who sell property.

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Trade Dress

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The way a product is packaged can be set aside and protected.

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3 categories of trademark names

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Fanciful names - no meaning beyond the product itself
Arbitrary names - You can't use a common name such as "apple" if you sell apples, but you can trademark it as the name of your technology company.
Suggestive names (EX: Coppertone tanning oil)

Front 25

The Six Exclusive Rights under Copyright Law

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1) The Right of Reproduction
2) The Right of derivative works
3) The Right of Public distribution
4) The Right of Public Performance
5) The Right of Public Display
6) The Right to public digital performance

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Sweat of the brow doctrine

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a rarely upheld doctrine that if somebody works really hard on something, it can be copyrighted, even if it is primarily factual
"If you worked really hard to collect a whole bunch of information and put it together, you should get a reward for that in the form of a copyright"

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Misappropriation

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The sweat of the brow doctrine in legislated form. "The unauthorized taking of the benefit of someone else's investment of time, effort, or money."

Front 28

Sonny Bono Copyright Extension Act (1998)

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Steamboat Willy was about to fall into the public domain, so Congress legislated that any work created after 1978 is protected for the creator's life + 70 years/ 95 years for corporations.

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Fair Use Doctrine (1879)

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small amounts of copying are permissible as long as it contributes to criticism, science, or the arts

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1976 Copyright Act

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Congress legislates the Fair Use Doctrine. "The fair use of copyrighted work...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright."

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The court will consider four factors when deciding fair use in copyright act cases

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a. Purpose and character of the use
b. Nature of the copyrighted work
c. The amount and substantiality of the portion used in relation to the copyrighted work as a whole (ratios matter)
d. The effect of the use on the potential market for or value of the copyrighted work.